KLC Serves as "Friend of the Court" in Pivotal 911 Funding Case
Posted on December 12, 2016 by Laura Ross in 911 Funding

KLC Serves as "Friend of the Court" in Pivotal 911 Funding Case

KLC Serves as "Friend of the Court" in Pivotal 911 Funding Case

It's no secret that funding for local 911 emergency services is a crucial issue for Kentucky cities. It has been and remains a top legislative priority for KLC (see article in Kentucky City magazine) and recently the issue rose to the top of the Kentucky court system as well. Earlier this month, the Kentucky Supreme Court heard oral arguments in the case of Greater Cincinnati/ Northern Kentucky Apartment Association, Inc. v. Campbell County Fiscal Court. While the case involves the legality of a county ordinance assessing 911 funding fees, the question is of equal importance to KLC members, leading KLC to file an amicus curiae brief advocating cities' interests in protecting a meaningful user fee structure and effective 911 funding options.

KRS 65.760 authorizes cities and counties to fund 911 services through a subscriber charge imposed on each telephone landline, or by levying "any special tax, license or fee not in conflict with Constitution and statutes of this state." To make up from declining revenue from landline phones, the Campbell County Fiscal Court enacted an ordinance imposing a flat annual fee on each occupied residential and commercial unit within the county to fund 911 emergency services. The apartment association sued, claiming the fee was not a valid user fee or any other statutorily authorized fee, and therefore was an unconstitutional tax. The association argued that to be a valid user fee, the 911 fee must only be charged for each actual use of 911 services -- i.e., each time a person calls 911 to report an emergency, he should be charged a fee.

The legal distinction between taxes and fees has never been clear, even to Kentucky's highest court. "User fees" are not defined under Kentucky law. KLC got involved in this case to urge the Supreme Court not to adopt a ruling that all user fees must be based on each actual use of a particular service. Such a ruling would not only render the statutory 911 funding options virtually meaningless, leaving cities with no feasible method to assess a fee for funding the services, but would also harm the flexibility the Legislature granted cities to assess any user fee for city services.

KLC asked the Court not to dismiss the concept that user fees could be based on availability of use, or the relationship to the benefit to be received from the service, rather than a rigid, "fee-per-actual-use" standard. The result, especially for 911 services, would be absurd: If individuals must pay a high fee every time they dial 911, they will be more reluctant to call. Deterring the use of emergency services could never be something the Legislature intended. KLC worked to persuade the Court to preserve broad 911 funding options for this vital local service, and avoid limiting the flexible user fee statutory scheme the Legislature has given to cities. KLC will update members on the outcome of this important case as soon as the Court issues its ruling.

The KLC Legal Advocacy Program represents the collective legal interests of KLC's member cities in the courts throughout the Commonwealth. As apparent in this case, much of the law affecting municipal government in Kentucky is shaped and made in the courts.

KLC will intervene as amicus curiae or otherwise assist municipal counsel with the preparation of a city's case-in-chief where KLC's participation is likely to positively advance cities' collective legal interests by establishing legal precedent that will help cities more effectively serve their citizens. In the past five years, KLC has participated in or assisted with at least 12 cases, and notably helped with important victories for cities regarding legislative prayer, open records exemptions, and annexation.

Any member city or agency may make a request to the KLC for intervention or assistance. For more information about this program or the latest cases in which KLC has participated, please contact Laura Ross, Managing Counsel for Member Legal Services, at 800-876-4552. To read KLC's amicus brief in the Greater Cincinnati case, click here.

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