The federal judge presiding over the lawsuit filed by two local electric companies against the Marshall County Fiscal Court has ordered no enforcement of the county's ordinance imposing the electric meter fee, pending further action by the court.
The agreed order entered by Senior Judge Thomas B. Russell with the U.S. District Court Western District of Kentucky in Paducah on Sept. 27 is the most recent action in the case regarding Jackson Purchase Energy Corporation (JPEC) and West Kentucky Rural Electric Cooperative Corporation (WKRECC) v. Marshall County and the Marshall County Fiscal Court.
Marshall County Attorney Jason Darnall said, "Judge Russell's order suspending enforcement of the electric meter fee for the time being was what is referred to as an 'Agreed Order,' meaning that both parties jointly asked the court to enter this order. It just makes sense to hold off on initiating collection until the court has had a chance to rule on the issues raised in the complaint. In fact, the fiscal court authorized me to consent to this order before the lawsuit was even filed."
"This order has no impact on the ultimate outcome of the case," he added.
Edward T. Depp, representing JPEC and WKRECC, declined to comment on pending litigation.
The suit was filed on Sept. 4 by Edward T. Depp and R. Brooks Herrick of Dinsmore & Shohl, LLP of Louisville, representing both WKRECC and JPEC, takin a number of issues with the ordinance imposing the $7 monthly fee on electric bills to fund Marshall County 911. The attorneys contend the ordinance violates the United States Constitution and the Kentucky Constitution, is unenforceable due to being vague and uncertain and impermissibly infringes upon the regulator authority of the Tennessee Valley Authority (TVA) and Kentucky Public Service Commission (PSC).
The alleged violations in the suit include: the lack of an effective date on the ordinance; failure to disclose the consequences of an electric customer failing to pay the 911 fee; the ordinance during its first reading was not presented as the "full text" available for public inspection because the amount of the monthly fee was left blank until the second reading on Aug. 26 and several changes made to sections three and four of the ordinance; the county did not publish the amended version of the ordinance; the summary of the ordinance that was published in The Tribune-Courier did not contain clarification for accuracy, was not written in a way calculated to inform the public clearly of its contents and makes no reference to the actual fee; "defendants published an inadequate and incomplete summary in order to intentionally avoid the public debate that KRS 67.075 seeks to encourage."
As part of the evidentiary documentation with the suit is the article published in The Tribune-Courier on Aug. 13 in which an anonymous source from local government was cited as providing proposed fees ranging from $4 and $7 monthly.
"Because the anonymous source was able to provide a budget projection, it is apparent that either: (1) Defendants had decided upon the amount of the fee to be imposed by the Ordinance, but withheld the amount of the fee from the public; or (2) Defendants held a "'firs reading' of the Ordinance to impose a fee without knowing the amount of fee that was being imposed," the document reads in part.
The lawsuit also states that by enacting the ordinance, the fiscal court is proposing an unprecedented scheme to commandeer a private company into the service of an administrative state in a manner that has no limiting principle. The document also states the ordinance has far-reaching implications and dire consequences as it would set the precedent that local government, or any government, can force, under color of law, private citizens to perform labor on behalf of the local government for any purpose.
The nearly 70-page document filed with the United States District Court for the Western District of Kentucky Paducah Divison requests: the court render a judgment declaring the ordinance imposing the fee is unconstitutional, invalidated in its entirety and is of no force and effect; an injection permanently prohibiting the implementation and enforcement of the ordinance; an award of the costs of this action to the fullest extent permitted by law including but not limited to reasonable attorney's fees; a jury trial on any issues.
On Aug. 26, a split vote of 3-1 during a special-called meeting approved imposing the $7 fee on electric boxes as well as E-911's departmental budget in excess of $1.9 million. Commissioner Kevin Spraggs was the sole voter in opposition of both the budget and the fee; his motion for imposing a $5 monthly fee died after never receiving a second.
During that meeting, WKRECC President and CEO David Smart and his legal counsel, Greg Carter, as well as JPEC President and CEO Greg Grissom spoke again in opposition to the measure saying it was not their place as private entities to collect fees for a governmental agency and reminding the court they would have no authority to penalize non payment. During the first reading of the ordinance imposing the fee on Aug. 6, Smart, Carter and Grissom also advised the fiscal court members their boards had passed resolutions in opposition to collection of such a fee and they had been authorized to seek any legal action necessary to oppose it if necessary.