RENDERED: NOVEMBER 2, 2017 TO BE PUBLISHED

2016-SC-000008-DG
BIG SANDY REGIONAL JAILAUTHORITY



## v. ON APPEAL FROM COURT OFAPPEALS CASE NO. 2015-CA-001464-DR FAYETTE CIRCUIT COURT NOS. 13-C-08761 & 15-XX-00009
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT

OPINION OF THE COURT BY JUSTICE KELLER ' AFFIRMING

,. _,I APPELLANT

APPELLEE

Big Sandy Regional JailAuthority (the Authority) sued the LexingtonFayette Urban County Government (the Urban County Government) in district court seekingreimbursement for the cost ofhousing prisoners held pursuant to warrants issued by Fayette County courts. The district courtfound that the Urban County Government is entitled to sovereign immunity, and it granted the Urban County Government's motion to dismiss. The Authority appealed to the**cir~uit** court, which affirmed, based on its finding that the county ofarrest controls responsibility for incarceration costs. The circuit court did not address the issue ofsovereign immunity, which it deemed moot. The Authority filed a motion for discretionary review before the Court ofAppeals, a motionthat Court denied. The Authority then sought discretionary review before this Court, which we granted. Having reviewed the record, we affirm the circuit court but for differe.nt reasons. I. BACKGROUND In the 1980s, the Kentucky Department ofCorrections closed or threatened to close countyjails in Johnson, Lawrence, Magoffin, and Martin Counties.· In order to meet their. statutory obligation to provide facilities for incarceratingprisoners, the four**countie~** formed the Authority whose pu.rpose
was to construct and operate a regionaljail, the Big Sandy Regional Detention Center (the Detenti.on Center).

) The Authority consists often members. Each ofthe founding counties appoints two members, with Johnson County, the most populous ofthe counties, receiving an additional member. The final member is the Johnson CountyJailer, because the Detention Centeris in Johnson County. The Authority is an independentbody, and the only input the founding counties have in the operation ofthe Detention Center is by way ofappointment ofthe Authority's mei:nbers through the respective counties'judge executives. The Authority has contracts with the state, the four founding counties, and Elliott and Morgan Counties to house their prisoners in the Detention Center. In exchange for housing those prisoners, the Authority is paid a per diem by the counties and the state, with the four founding counties paying a little less than the others. This per diem, along with a smallamount from the

2Detention Center's commissary, constitutes the entirety ofthe revenue available to operate the Detention Center. On March 21, 2013, the Authority filed suit against the Urban County Government in district court. 1 In its complaint, the Authority listed a number ofprisoners who had been arrested by an officer from one ofthe four founding counties based on warrants issued by Fayette County courts. Although the. Authority believed ithad no contractual obligation to do so, the Authority agreed to house those prisoners in the Detention Centeruntil officials from the Urban County Government could arrange for their transfer to an Urban County Governmentfacility. The Authority considered those prisoners to be "Fayette County prisoners" and billed the Urban County Government the per diem for· each prisoner's stay in the Detention Center. The Urban County Government refused to pay, which led to this action. The Urban County Governmentfiled a motion to dismiss, and the Authority filed a motion for summaryjudgment. In its motion, the Urban County Government argued th;:it itwas immune from suit and, ifnotimmune, the obligation to pay for the incarceration ofprisoners falls on the arresting county, not on the county that issued the warrant. In its motion, the Authority argued that the Urban County Governmenthad a statutory obligation to pay

1 We note thatthe Authorityinitiallynamed other counties but the Authority voluntarily dismissed those counties, choosingto proceed against onlythe Urban County Government. The Authority also initiallyfiled suit inJohnson County district courtbutmoved to transferthe action to Fayette County district court, a motion the Johnson County district court granted. Finally, we note that the Authority initially filed the action on the district court's small claims docketbut, without objection, the court.transferredit to the regular.docket. 3for the incarceration ofprisoners wh.o were being held pursuant to a warrant iss-qed by a Fayette County court. In its response to the Urban County Government's motion, the Authority argued that the statute imposing the duty
on counties to provide for the incarceration ofprisoners waives immunity by implication. The district courtfound in favor ofthe Urban County Government and**dismis~ed** the Authority's complaint. In doing so, the court determined that the Urban County Governmentis immune and that immunity had not been waived either explicitly orimplicitly. The Authority appealed to the circuit court,**whi~h** affirmed, based on its finding that the county ofarrest controls responsibility for incarceration. The circuit court did not address the issue of sovereign immunity. On appeal, the Authority argues, as it did below,Jhat Kentucky Revised Statute (KRS) 411.025 requires a county that issues an arrestwarrant to provide for the incarceration ofthe prisoner arrested pursuantto that warrant, regardless ofwhere the arrest occurs. The Urban County Government argues that KRS 411.025, when read in its**entir~ty** and in co:njunction with other statutory provisions, requires the arresting county to provide for that incarceration, regardless ofwhat countyissued the arrestwarrant. The Urban County Government also argues that ithas immunity, which the Authority disputes.

4. II. STANDARD OF REVIEW Resolution ofthis appeal primarilyrequires us to undertake interpretation ofa statute. The construction and application ofstatutes·is a matter oflaw, which we review 

### de novo, BobHook ChevroletIsuzu., Inc.**v~** 

### Com. Transp.**Cab~net,** 983 S.W.2d 488, 490 (Ky. 1998), without any deference to the interpretation afforded by the circuit court. 

### Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998) (citing

### Louisville Edible OilProducts, Inc. v. Revenue Cabinet Commonwealth of Kentucky, 957 S.W.2d 272 (Ky. App. 1997)).



### A. Statutory Interpretation 1. KRS 441.025 III. ANALYSIS

When interpreting a statutory scheme, we seek to effectuate the legislature's intent and "[t]he plain meaning ofthe statutory language is presμmed to be what the legislature intended." 

### Stinson v. Commonwealth, 396 S.W.3d 900, 903 (Ky. 2013) (citing 

### Revenue Cabinet v. H.E. O'Daniel, 153 S.W.3d 815, 819 (Ky. 2005)). "The plain-meaningrule is consistentwith directions provided by the legislature on how to interpretthe statutes enacted by it." 

### Wheeler & 

### Clevenger Oil Co., 

### Inc. v. Washburn, 127 S.W.3d 609, 614 (Ky. 2004) -(citing KRS 446.015; KRS 446.080(4)). "Only ifthe statute is ambiguous
or otherwise frustrates a plain reading, do we resort to extrinsic aids such as the statute's legislative. history; the canons ofconstruction; or, especially in the
case ofmodel oruniform statutes, interpretations by other courts." 

### Stinson,

5396 S.W.3d at 903 (citing 

### Shawnee Telecom Res., 

### Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011)). KRS 441.025(1) states: "The fiscal court ofeach county shall provide for the incarceration ofprisoners arrested in the county or sentenced**o~** held by order ofthe courts in the county." This statute is, atbest, unclear, and, at worst, inapplicable. However, it is the only statute we have. Therefore, we must interpret it as**b~st** we can. The Authority argues that a county that issues

## awarrant for an individual is responsible for the costs ofincarceratingthat individual, even if
an arrest occurs in another county. The Urban County Government argues that the county making the arrest is responsible for the costs ofincarceration regardless ofwhich county originated the charges or warrant necessitating the arrest. The Authority argues that, ifthe Urban County Government's interpretation is correct, there is no reason for the second halfofthe sentence. because the obligation would always fall on the arresting county. That argument is. flawed. There are instances where a county, otherthan the arresting county, would be responsible for housing prisoners. For example, KRS 411.025 applies post-conviction to prisoners who have been sentenced by order ofthe courts in the county and to inmates held by order ofthe court as a result ofa probation violation. It also applies pre-conviction to inmates held by order ofthe courts pending trial. Itwould additionally apply to those held for contemptviolations.

6However, the Authority's argument that the county thatissues a warrant is responsible for incarceration costs is equally, ifnot more, flawed. According to the Authority, the**arre~ting** countyis only responsible for the incarceration ofprisoners ifthe arresting county is also the county thatissued the warrant for the prisoner. For this interpretation to be correct, the statute would require
an "and" instead ofan "or" and would have been written as: "The fiscal court of each county shall provide for the incarceration ofprisoners arrested in the county and**senten~ed** orheld by order ofthe courts in the county." A prisoner may be heldpursuant to warrants from one county or multiple counties. The Authority's argument does not account for such a**situ~tion.** The Court believes that the correctinterpretation begins and ends with the premise ofpossession and that a prisoner's status flows from possession and control. Thus, the prisoners in this case were prisoners ofJohnson,**Lawrence~** Magoffin, and Martin counties because**thos~** counties had possession and control ofthe prisoners via arrest. Once Johnson, Lawrence, Magoffin, and Martin counties relinquished the prisoners to Fayette County, Fayette County becameresponsible for the costs ofincarceration because the prisoners would then be held by Fayette County pursuantto

# an**ord~r** ofthe Fayette County courts. 2. Relying on possession and control in interpreting KRS 441.025 is consistent with the statutory scheme and criminal procedure practice.
a. Statutory Scheme KRS 441 applies to the operation and management ofcountyjails and assigns financial responsibility for_thosejails to each fiscal court. Each county 7is obligated to incarcerate its prisoners, an obligation that can be fulfilled by providing and maintaining a separate county-runjail or by contracting with another county or city to house the county's prisoners. The General Assembly did not mandate that counties reimburse each otherfor the costs ofhousing prisoners held by order orjudgmentofanother county. Had the General Assembly wanted to impose that obligation, it could have done so. The absence ofany such statutoryprovision further supports ourholding that the county with possession ofthe prisoner bears the cost 

### b. Criminal procedure practice We find additional supportfor ourinterpretation in the Kentucky Rules ofCriminal Procedure. Kentucky Rule ofCriminal Procedure (RCr) 3.02(1) states: An officer making an arrestUhder a warrant issued upon a complaint shall take the arrested person without unnecessary delay before ajudge as commanded in the warrant. Ifthe arrest is
. made in a county othe·r than that in which the warrantwas issued and the arrested person is not taken as commanded in the warrant, the arrested person shall be taken before ajudge·ofthe countyin which the arrest is made, who shall consider the defendantfor release on personal recognizance and so release the arrested person or admit the arrested person

### to bail for his or her appearance before the properjudge
.... Ifthe offense is non bailable, or ifthe person arrested is unable to give bail, thejudge shall committhat person tojail and he or she shall be taken as commandedin the warrantwithin a reasonable time by an officer· ofthe county in which itwas issued. In other words, an arrested person must be taken without unreasonable delay before ajudge ifnot delivered to the county issuing the warrant. Thus, the rule contemplates that the county ofarrest has a responsibility for the prisoners in its possession, and as such; the county ofarrest should bear the 8costs. The rule further provides for transportation ofthe prisoner to the county that issued the warrant. The Authority is concerned that there is no time limit during which a charging county must pick up and transport a prisonerwho is arrested and held in another county. The Authority reasons that Fayette County will delay pickingup its prisoners inJohnson Countyto avoid the costs ofincarceration.

__,, There is not an established definition for "unreasonable delay;" however; the courts have held that 48 hours is notunreasonable, 

### see County of Riverside v. McLaughlin, 500 U.S. 44 (1991), and some local courtrules in the Commonwealth provide that the defendantwill be arraigned no later than at the next regular motion hour. Ky R Knott Magoffin Cir. Ct. Crim. Cases 2(A). Thus, the county ofarrest should release the·prisoneror establish bail for the prisoner within 48 to 72 hours. Ifnotreleased, the prisonerwill remain in thejailuntil the county issuing the warrant arranges for transportation, which must be done within a reasonable time. Ifthe county issuing the warrant does notwant the prisoner to go free, that countywill arrange for transportation. Otherwise, it runs the risk that a judge in the**arrest~ng** countywill release the prisoner on bail. Law enforcement officers, and indeed elected county offidals, should have an interest in the prosecution ofthe perpetrators ofalleged crimes in their · communities. Furthermore, prosecuting attorneys have an interestin thejust resolution ofalleged crimes committed in the counties from which they were elected. We understand and note the Authority's concerns regarding undue 9delay and its potential fiscal impact. However, for the aforementioned reasons, this Court has confidence inthe abilities ofourvarious counties and their elected officials to cooperate in the orderly administration ofjustice.

· B. Contract .Finally, itis undisputed that the Authority has contracts with the state, the four founding counties, and Elliott and Morgan Counties to house their prisoners in the Detention Center. The Authority has stated thatit has no legal obligation to accept prisoners from the Urban County Government or from any other county with which ithas not contracted. The Authority is correct to the extent that itis only responsible for housing prisoners brought to it by counties with which ithas a contract. For example, the Authority is not required to accept prisoners who were arrested 

### in Fayette County because the Authority does not have a contractwith Fayette County and KRS 441.025 mandates Fayette_County to provide for the incarceration ofits prisoners. Certainly, the Authority can accept prisoners brought to it by ot}J.er counties, ' butit does so atits own risk. As we have stated herein, law**enforce~ent** officials in the counties ofJohnson, Lawrence, Magoffin, and Martin had an obligation to arrest these individ;uals who had outstandingwarrants against them, and therefore, the Authoritywas obligated to.accept these prisoners who
were arrested by officers in those counties. The Authority is entitled to paymentfor its costs ofhousing these prisoners, an entitlement that comes through the Authority's contract, which needs to be enforced aga.lnst the appropriate counties: In this case, those counties are Johnson, Lawrence, 10Magoffin, and Martin which are obligated to pay the costs asthe arresting counties. IV. CONCLUSION For the above reasons, we affirm the circuit court's order because the Urban County Governmentwas notresponsible for the costs ofincarcerating prisoners not in its possession. All sitting. Minton, C.J., Cunningham, Hughes and Keller, JJ., concur. Venters, J., concurs in result only by separate opinion which VanMeter, J., joins. Wright, J., dissents by separate opinion. VENTERS, J., CONCURRING IN RESULT ONLY: I concur in the result reached by the Majority opinion, butI disagree with its reasoning. KRS 441.025(1) cannot answer the question before this Court because it was drafted and enacted by the legislature to perform an entirely different function. Wringing that statute to squeeze out an answer to the question before us is like shaking an apple tree hoping that a peach will fall out. Itmay be, as the Majorify laments, the only statute we have; but itwill never produce the fruit
we need to resolve this dispute. Like the clever image that simultaneously appears to be the silhouette of
a vase or the silhouettes oftwo faces, KRS 441.025 when applied to this controversyis perfectlyambiguous; a riddle without a solution. However, when applied to its intended purpose, the statute performs perfectly well, and its meaning is perfectly clear and unambiguous.

11. .. ·I respectfully suggest that KRS 441.025(1) is simply inapplicable to the present controversy. We are loath to say thatwe have no law thatgoverns this issue, but I find itpreferable to accept the reality ofthat unappealing choice than to infuse·that statute with meaning never put there by the legislature. As its title.portends, KRS 441.025 simply places the fiscal responsibility for · incarceratinglocal prisoners-those who have either**b~en** arrested in the county or committed tojail by a courtin the county-on the county

· government rathe_r thah upon local municipalities or upon the state

government. Each subsection ofKRS 411.025 is devoted to that purpose, and that purpose is entirely consistentwith the remaining provisions ofKRS Chapter 441. 

### '" KRS 441.025(1)reads as follows.: "The fiscal court ofeach county shall ·provide for the incarceration ofpris.oners arrested in the county or sentenced
orheld by order ofthe courts in the county." A less concise but grammatically equivalent restatement ofthe statute would read as follows: The fiscal court ofeach county shall provide for the incarceration ofprisoners who have eitherbeen 1) arrested in the county or 2)
. sentenced or held by order ofthe courts in the county. Plainly stated, county government ("the fiscal court") bears.the fiscal responsibility for the incarceration ofa person 1) arrested in that county; or 2) sentenced orheld pursuant to the order ofa court in that county. The prisoners that are the subject ofthe pending controversy**~t** equallywithin either category. They were arrested in counties served by the Big Sandy Regional Jail; and they were sentenced orheld by orders ofa court in Fayette 12\ County. KRS 441.025 does not differentiate orprioritize the**fi~cal** responsibility for incarceration in either circumstance. I see nothing in the language or grammatical structure ofthe statute that fayors the county of arrest over the county ofthe court order, orvice versa. The statute cannot resolve the conflict we face because itwas notwritten to allocate the responsibility ofincarceration between competing counties; itonly establishes that county governments, rather than cities or the state, must bear that burden. Consequently, I would adhere to the general rule that in the absence of applicable statutes, common law principles are controlling. 

### SeeKenton & 

### CampbellBenev. BurialAss'n·v. Goodpaster, 200 S.W.2d 120, 127 (Ky. 1946). Insofar as I can determine, there is no common law cause ofaction for a Kentucky county (or a regional entity standingin its place) housing a prisoner to recover its expenses from another county. I would therefore dismiss the claim ofBig Sandy, leaving it holding the baguntil the legisl;:iture fills the statutory gap with a solution ofits choosing. Accordingly, I would affirm, as does the Majority opinion, albeit·upo:r:i different grounds. VanMetet, J.,joins. WRIGHT, J., DISSENTING: I respectfully dissent frorh the majority's

.interpretation ofKRS 441.025(1). The statute reads: "[t]he fiscal court ofeach

county shall provide for the .incarceration ofprisoners arrested in the county or sentenced or held by order ofthe courts in the county." I point out that, in**construing~** statute, "[w]e presume that the General Assembly intended for the 13·statute to be construed as a whole, for all ofits parts to have meaning; and for it to harmonize with related statutes." 

### Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011) (citing 

### Hall v. Hospitality Resources, Inc., 276 S.W.3d 775 (Ky. 2008); 

### Lewis v. Jackson Er:iergy Cooperative Corporation, 189**S.W.~d** 87 (Ky. 2005)). Appellant, Big Sandy Regional JailAuthority, argues that ifthe arresting · countyis responsible for the cost ofincarceration regardless ofthe countyfrom which the charges orwarrant o'riginated; then the latter**~lause** ofthe sentence is meaningless. The majority disputes this interpretation and lists a number: of circumstances in which a county otherthan the arresting countywouldbe responsible for the cost ofincarceration. A closer examination ofeach ofthe circumstances listed by the majority is necessary for this analysis. First, the majority points to postconviction prisoners sentenced by order ofa county's courts. In this instance, a prisonerwould have 

### tO be in the same county as the courthanding down the sentence. Ifthe sentence is for a felony conviction, then the state is responsible for the cost ofpost-judgment incarceration. Ifthe sentence is for a misdemeanor, then the sentencingcourt would order the prisonerto be incarcerated in thejail ofthe county where the courtis located and in which the crime occurred. The next instance listed in the majority's opinion involves prisoners held by court orderfor probation violations. The courthearing an.alleged probation violation and .ordering a revocation would be the sentencing court. The court would orderthe prisonerincarcerated in the countyjail. The state would be 14responsible for felony prisoners and the county in which the courtwas located and in·which the crime occurred would be responsible for misdemeanor prisoners. The majority opinion also listed prisoners held for contemptviolations as
a possible example ofa circumstance in which a county other than the arresting county could potentially be responsible for housing prisoners. Anyone sentenced for a contemptviolation would be sen,tenced by the court in which the contempt occurred. Therefore, the courtwould order the prisoner incarcerated in thejail ofthe county in which the courtwas located and the contempt occurred. The final circumstance listed by the majority is what occurred in the present case. In this scenario, an inmate is held pre-conviction by order of.the court pending trial. The prisoners in the current case were arrested on warrants from Fayette County courts. The warrants were orders from Fayette

I County courts to arrest person accused ofviolating the**~aw** in Fayette County and to bring them before the courts in Fayette County. KRS 441.025 (1) states: "the fiscal court ofeach county shall provide for the incarceration ofprisoners
.

. . held by order ofthe courts in the county." The inmates here were held pursuantto orders from courts located in Fayette County, where the crimes occurred. The officers in the counties served by thejail lacked the legal authority to arrest the prisoners without the orders to arrest from Fayette County. The statute is clear that the countyresponsible for the incarceration is the one in 15which the courtthat ordered the incarceration is located. The courtlocated in the countyin which the crime occurred is the court thatwould have the case and the court thatwould be ordering the prisonerheld. "[I]t has been long established the specific provision takes precedence over the general**prov~sion."** 

### Porterv. Commonwealth, 841 S.W.2d 166, 168-69 (Ky. 1992) (citing 

### Morgan CountyBoard of Education v. Elliott, 260 Ky. 672, 86 S.W.2d 670 (1935)). The first portion ofKRS 441.025(1) provides that eachcounty will be responsible for the incarceration ofprisoners arrested in the county. The second portion provides that the county will be responsible for prisoners held by orders ofthe courts in the county. Ifa person is arrested pursuant to a warrant from Fayette County, then he is being held by order of

· the courts in Fayette County. Therefore, the more specific provision that a .

county is responsible for prisoners held by orders ofthe courts ofthe county controls-and Fayette County would be responsible for prisoners arrested pursuant to orders ofthe courts ofFayette County. Pursuant to KRS 431.005(1), an officer may arrest a person ifthey observe the crime being committed, have sufficientprobable cause ofa felony committed in theirjurisdiction, or are ordered to do so by order ofa court. If the arrest occurs because the officer observed the crime being committed or had sufficient probable cause evidence ofa felony committed in the officer's jurisdiction, then the crime occurred in the county that incarcerated the ·prisoner. In short, an officer makes an arrest eitherfor crimes that occur in his county orpursuantto court order. 16The majority states that "[t]he General Assembly did not mandate that counties reimburse each otherfor the cost ofhousing prisoners held by order
orjudgment ofanother County." I mustrespectfully disagree. The statute specifically states which counties shall provide for the incarceration of prisoners. Itis not for this court to second-guess, alter orrevise the responsibility provided by the legislature. The fact that the legislature did not specify how and when one countywould reimburse another does not change the fact that it specified who was responsible to provide for the incarceration. The language ofthe statute is clear and its meaning is plain. Each circumstance described in the statute places the responsibility for incarceration on the countyin which the crime occurred and whose courts· have the case. For those reasons, I dissent from the majority and would
reverse and remand.

COUNSEL FORAPPELLANT: Nelson Theodore Sparks
COUNSEL FORAPPELLEE: Charles Edwards Ill Michael Keith Horn LFUCG Department ofLaw

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