Plaintiffs Seek Rehearing Of Kentucky Supreme Court Decision Upholding 911 Fee

The Greater Cincinnati/Northern Kentucky Apartment Association and other commercial and residential property owners in Campbell County, Kentucky, (collectively, the "Association") have filed a petition seeking rehearing of the Kentucky Supreme Court's decision upholding a flat fee to fund 911 service (the "911 fee"). The $45 annual fee is placed on the property tax bills of property owners in Campbell County. Five members of the Court (the "Majority") recently held the fee, imposed by an ordinance passed by the Campbell County Fiscal Court (the "County"), is constitutional.1 The Majority held the fee is a valid exercise of the County's statutory authority under KRS § 65.760(3), which provides, in pertinent part, "The funds required by a city, county, or urban-county government to establish and operate 911 emergency telephone service . . . may be obtained through the levy of any special tax, license, or fee not in conflict with the Constitution and statutes of this state." (emphasis added).

Kentucky Rule of Civil Procedure 76.32 provides that a petition for rehearing will be granted "when it appears that the court has overlooked a material fact in the record, or a controlling statute or decision, or has misconceived the issues presented on appeal or the law applicable thereto." In its petition, the Association argues the Court's decision upholding the 911 fee dangerously expands local authority to raise revenue and removes protections afforded taxpayers and property owners since the current Kentucky Constitution was adopted in 1891. Specifically, the Association argues the Majority's Opinion (1) misconceives the issues presented by failing to address whether the 911 fee is an unlawful tax; (2) conflicts with the holdings in prior decisions, including the Kentucky Court of Appeals' decision in Barber v. Commissioner of Revenue2 and the Kentucky Supreme Court's decision in City of Bromley v...