RENDERED: JANUARY 21 , 2022; 10:00 A.M. NOT TO BE PUBLISHED 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

v. APPEAL FROM OLDHAM CIRCUIT COURT

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, AN D TAYLOR, JUDGES.

CETRULO, JUDGE: John K. Carter appeals from two order s of the Oldham

Circuit Court granting summary judgment in favor of appellees Oldham County

Extension District and Oldham County Extension Board (collectively “the- 2

-

Extension District”) ; David Voegele, Oldham County Judge Executive (“Judge

Voegele”) ; and Oldham County. We affirm.

The underlyi ng facts of this matter were previously summarized , in

part, by this Court as follows:

I n 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 Exte nsion 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 j udgment 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 pro ceed individually.

On September 15, 2017, the [circuit] court entered an order which directed Barr to include the tax on the tax- 3

- bills. The court found that her job was to only list the taxes presented to her on the tax bills. The court further found th at 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 re presenting 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 bill s 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 [Ca rter’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.- 4

-

Carter v. Oldham C ounty 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 remande d 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 ci rcuit 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 CR 1 76.12 both in letter and spirit. As the

proper interpretation of statutes is an issue of law

, th e Court o f Appeals ’ review is

generally de novo

. Clark C ounty Att ’ y v. Thompson , 617 S.W.3d 427 (Ky. App.

2021)

. However, t he 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.- 5

-

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 asserte d herein, which is essentially a dispute over the pr oper 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

KRS 2 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 i n which it operates; and

2 Kentucky Revised Statute.- 6

- 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 o f the Extension District, t he

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. Ad opts 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

r eport the fee or tax to the governing body of the establishing entity in which the largest- 7

- 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 require d the Extension District to obtai n 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 co urt, 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 Ca rter’s position in the instant action.

The circuit court rejecte d Carter’s argument that KRS 67.083(3)(q)

“provides greater authority for the governing body of a city or county over taxes,- 8

-

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 6 7.083(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

. A n opinion from a circuit court

generally ha s 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 a pplicable 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 publ ic services, including, but not limited to, training, educational services, and cooperative extension service
programs [.]

(Emphasis added

. )- 9

-

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 rel y on an opinion of the Kentuck y
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 authorize d a

cooperative extension service dist rict 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

.- 10

-

BRIEF S FOR APPELLANT:

Lee E. Sitlinger Louisville, Kentucky BRIEF FOR APPELLEE S OLDHAM COUNTY EXTENSION DISTRICT AND OLDHAM COUNTY 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