In northern Kentucky this spring, the more things change the more they stay the same for the embattled Campbell (CCPL) and Kenton County Public Libraries (KCPL). After the state General Assembly came close, but ultimately failed to deliver a legislative solution to their longstanding legal woes, the library systems have little recourse except to wait for an appeals court decision that will help determine how they—and potentially the majority of Kentucky libraries—can raise tax revenue. Seventy-nine of Kentucky’s 106 library districts were created by the law being challenged in this case, so the verdict will have far-ranging effects.
It’s a wait fraught with nervousness for library officials and patrons, still facing the prospect of wholesale budget cuts if litigation brought by members of Kentucky’s tea party is successful. Plaintiffs insist these two libraries have raised money illegally for more than three decades; they want tax rates rolled back to levels established in the 1970s or earlier. Aftershocks from such a ruling would include branch closures and staff layoffs for the Campbell and Kenton County systems.
Legislative fix fails
For a while, it looked as if the state legislature might render a final outcome to the conflict before the courts had a chance to. In March, the Democrat-controlled Kentucky House of Representatives introduced a companion bill into their budget legislation that would have affirmed House Bill 44 as the proper taxation formula.
(CCPL and KCPL were each founded by county petition drives and empowered as special taxing districts under this 1979 statute, but plaintiffs claim the overriding law is KRS 173.790, which mandates that proposed tax rates must be approved by at least 51 percent of voters, employing the same kind of door-to-door petition drive that helped create the library in the first place.)
The lower chamber later passed its budget, as did the Republican-dominated state Senate, although its plan left out any language about the library litigation.
Said Lisa Rice, a past president of the Kentucky Library Association (KLA) who has actively monitored the northern libraries’ situation, “We were hopeful,” adding that a legislation remedy was “so close.”
Mary Lynn Collins, president of Friends of Kentucky Libraries (FKL), said her organization did its best to lobby the General Assembly on the library issue. “We didn’t just cross our fingers,” she told LJ. “We started calling. There was a lot of calling of legislators on the issue.”
“It was the solution,” J.C. Morgan, CCPL’s executive director, said. “I was hoping they would pass it. … Eventually there was too much political capital involved in getting that passed.… They didn’t pass anything worse, which is good.”
Sources told LJ that although GOP Senators indicated no particular fondness for the language affecting the library lawsuits, it stood a decent chance of staying in the final spending bill. But very late in the conference committee phase of the budget process, as the two sides haggled over the final sticking points, Republican leaders finally insisted the language be excised and had the votes to get their wish.
“We didn’t want to get in the way of these ongoing lawsuits,” Senate Majority Leader Damon Thayer, a Republican, told Cincinnati.com after the final budget was adopted.
During the budget negotiations, Garth Kuhnhein, a plaintiff in the Kenton County lawsuit and a former president of the Northern Kentucky Tea Party, spoke to Cincinnati.com of his strong resistance toward a legislative solution. “You can’t make a wrong right,” he said. “That’s just not right. You’ve got separation of powers. You’ve got (the legislators) writing laws. You’ve got (the judges) interpreting it.”
Plaintiffs enter politics
Some crossing the streams between the legislative branch and the court cases may be unavoidable, due to an overlap in personnel. In January Brandon Voelker, a Cold Spring, KY, attorney who represents all plaintiffs in the library litigation, announced his candidacy for state Senate. He’ll battle two other Republicans in a May 20 primary. Voelker freely admitted the library litigation was an issue that spurred his decision to run. After announcing his candidacy, he told Cincinnati.com that if elected, he would introduce a constitutional amendment to require any board that has the power to raise taxes to be directly elected by voters.
“I want to change our laws moving away from the special districts and putting the rights back with the people,” Voelker told the website, “making government more transparent and reflective of the desires of the people.”
Meanwhile, Charlie Coleman, a plaintiff in the library lawsuit, is a candidate for Campbell County Commissioner. His campaign brochure identifies him as a conservative Republican, but mentions little about his tea party affiliation and does not include a single reference to the litigation.
A judgment call
As to those judges who interpret the existing law, last month, the three-judge Kentucky Court of Appeals panel denied a motion by Campbell County Public Library’s (CCPL) attorney to hear oral arguments before ruling. Plaintiffs have already won twice at the circuit court level, and it’s those verdicts that remain on appeal.
The litigation will turn on a question of which legal statute trumps the other, House Bill 44 or KRS 173.790. A total of five northern Kentucky libraries were sued over their method of raising taxes, but only the CCPL and KPL cases have advanced in the courts. The remaining lawsuits are on hold.
In December, an amicus curiae brief was filed in support of the libraries, on behalf of several statewide groups: FKL, KLA, American Library Association (ALA), the Kentucky Public Library Association, and even General Federation of Women’s Club Kentucky. Collins called that amicus brief the single most important action in FKL’s six-year history.
No one interviewed for this story had any inkling when the latest verdict can be expected. Jeff Mando, the attorney for CCPL, said the Court of Appeals releases its opinions on Friday mornings, usually without any prior notice. Sometimes, Mando said, the court clerk’s office, strictly as a courtesy, will notify attorneys on Thursday that a ruling in their case can be expected the next day. “I can tell you it doesn’t happen every time,” the lawyer added.
In April, the court denied Mando’s motion to hear oral arguments in the case and will rely instead on written briefs already filed. “I’m disappointed,” Mando said, adding that the court would have “benefited from a vibrant discussion of the legal issues,” but he did not classify it as a legal setback for his clients.
“We are still hopeful about the outcome of the lawsuit,” said Rice. “So many libraries are in a holding pattern right now because their funding is in question.”
Even if the affected libraries suffer a defeat in the appeals court, it won’t automatically mean they will quickly be forced to revert back to prior tax rates. Last July, the same court granted Mando’s motion for intermediate relief, effectively freezing tax rates at their current level until the panel issued its ruling. Mando and others told LJ last week that no matter how this latest legal outcome unfolds, a further appeal to the Kentucky Supreme Court is expected. So Mando said the appeals court, as part of its decision, is likely to keep the existing tax rates in place.
So far, CCPL and KPL said they have made little progress toward planning for a worst possible outcome in the appeals court. Asked if any preparations for a KCPL library tax petition drive are currently in the works, Schroeder said, “At this point, no.”
Morgan, for his part, said, “We have talked about and asked our lawyers what we would need to do.” One advantage in that scenario, he noted, was that CCPL could pick the time for such a petition campaign, enabling it to avoid times that conflict with other local elections. That way, Morgan explained, the petition drive could gain the entire spotlight and avoid being mixed with other community political issues.
But Morgan and Dave Schroeder, KCPL’s executive director, agreed that such planning is probably unnecessary, mostly because the court system is almost certainly not almost done with the issue. “We firmly expect there will be an appeal no matter what the decision will be,” Morgan told LJ.
Morgan said CCPL patrons inquire almost daily about the litigation, and they understand the dire consequences from more legal setbacks. “It’s kind of a strange notoriety,” he told LJ. Added Morgan, “We’re doing OK. State-wide, there’s trepidation.”
Schroeder said, “we’ve gotten more and more questions from patrons as they become more and more aware of what’s going on. We’ve done a good job of explaining to them what the process is—that this is something that is not going to happen overnight.”
KCPL patrons have even established an Internet presence to help publicize its arguments in the litigation. Kypool.com (an acronym for Keep Your Politics Out of Our Libraries) contains news, videos, a blog and other material about the district, although the news page has not been updated since November.