Request By:
Mr. John A. Breslin
Attorney at Law
Court Square
Maysville, Kentucky 41056
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Ruayan, Assistant Deputy Attorney General
In OAG 79-378, written to you, the question was raised as to whether or not there is some statutory provision for taking an appeal from an order of fiscal court, the appeal statute, KRS 23.030(1), having been repealed in 1976 (Ex. Sess.), Ch. 14, § 491, effective January 2, 1978. CR 72.01 expressly declares that appeals under CR 72 applies only to appeals from the district court to the circuit court.
We concluded in that opinion that there is no appeal statute in existence which permits or deals with an appeal from an order of a fiscal court. In OAG 79-378 we mentioned KRS 23A.010, but we saw no application to such appeals as concerns that statute. You indicate, however, the view has been advanced that KRS 23A.010 is broad enough to cover an appeal from a fiscal court order. We do not agree with such view.
KRS 23A.010 reads:
"(1) The circuit court is a court of general jurisdiction; it has original jurisdiction of all justiciable causes not exclusively vested in some other court.
"(2) The circuit court has appellate jurisdiction as specified in this chapter.
"(3) The circuit court is a court of record and of continuous session.
"(4) The circuit court may be authorized by law to review the actions or decisions of administrative agencies, special districts or boards. Such review shall not constitute an appeal but an original action. "
Subsection (2) of the statute provides that the circuit court has appellate jurisdiction as specified in this chapter. As the implementation of that provision, KRS 23A.080(1) provides that a direct appeal may be taken from district court to circuit court from any final action of the district court. CR 72 deals with the procedural details of appeals from district court to circuit court.
Subsection (4) of KRS 23A.010 provides that the circuit court "may be authorized by law" to review the actions or decisions of "administrative agencies, special districts or boards." (Emphasis added). The phrase, "may be authorized by law", suggests to us that the review which is not an appeal but an original action, is an inchoate authority and requires some further and positive legislative act or rule of the Supreme Court of Kentucky to permit such original actions.
In addition, the terms, "administrative agencies, special districts or boards", do not include fiscal courts. The fiscal court is not a mere "administrative agency." Historically and judicially it has been characterized as the legislative body of the county.
Rea v. Gallatin County Fiscal Court, Ky., 422 S.W.2d 134 (1967) 137. Also see
Plageman v. Board of Commissioners, Etc., Ky. App., 569 S.W.2d 191 (1978), which dealt with whether a city ordinance was legislative or administrative in nature for the purpose of applying the initiative procedure. This clearly reflects that the legislative body can enact ordinances which are primarily administrative in nature and those which are primarily legislative. Indeed, the fiscal court exercises legislative and ministerial or administrative powers as well as powers in their nature quasi-judicial.
Shelton v. Smith, 284 Ky. 236, 144 S.W.2d 500 (1940) 501; and
Knott County v. Michael, 264 Ky. 36, 94 S.W.2d 44 (1936) 45.
The appellate court has many times characterized certain actions of the fiscal court as being "legislative" in nature. See
Commonwealth v. Kenneday, 118 Ky. 618, 82 S.W. 237 (1904) 238, as to levying taxes;
Fiscal Court of Jefferson County v. City of Anchorage, Ky., 393 S.W.2d 608 (1965) 613, as to enactment of zoning ordinances.
Thus the terms, "administrative agencies, special districts or boards", simply do not accurately reflect the inclusion of fiscal courts.
Finally, as we noted in OAG 79-378, CR 72 provides for only appeals from district court to circuit court.