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. Runyan, Assistant Deputy Attorney General
You have raised the question concerning the taking of an appeal from an order of the fiscal court. Back before the constitutional amendment relating to the judiciary, KRS 23.030(1) expressly provided that appeals may be taken to the circuit court from all orders and judgments of the fiscal court. However, that section was repealed by Acts 1976 (Ex. Sess.), Ch. 14 § 491, effective January 2, 1978.
During the time that KRS 23.030 was in effect, Judge Cullen, in Shreve v. Taylor County Public Library Bd., Ky., 419 S.W.2d 779 (1967), made it clear that appeals could be taken to the circuit court from all orders of the fiscal court, regardless of the nature of the order. He pointed out that the right to appeal had not been limited to orders of a judicial character. Indeed, the appeals could involve orders of a basic administrative or executive nature.
In view of the premise that appellate jurisdiction in connection with appeals from orders of fiscal court must be, generally, spelled out explicitly by statute, we now face the inevitable question of whether or not the legislature enacted a statute in lieu of KRS 23.030.
The circuit court has appellate jurisdiction as specified in KRS 23A.010(2). Under KRS 23A.080(1) a direct appeal may be taken from district court to the circuit court. Under subsection (2) of that statute the circuit court may issue all writs necessary to aid its jurisdiction, etc. However, this latter statute does not specifically address the question you have raised.
In the process of elimination, we find that KRS 24A.010(3) provides that the district court has no appellate jurisdiction. So far, we have discovered that no appeals can be taken from a fiscal court order to the district court; and generally no order of the fiscal court can be appealed to the circuit court. At this point, we have no means of knowing whether the failure to legislate a statute comparable to KRS 23.030 was an oversight of the General Assembly or whether it was indeed the result of a deliberate omission. After all, it could be reasoned that unless an appeal statute was drafted on a selective basis, rather than on a general basis, it might have been felt that a statute similar to KRS 23.030 might be too burdensome in connection with the appeal docket of the circuit court.
However, something happened to Rule 72 of the Civil Rules which is, we think, controlling. Under CR 72.01, prior to the judicial amendment of the constitution, the requisites for taking an appeal from a quarterly court, county court, police court, city court or a court of justice of the peace was set forth. The case of Graves Co. Public Library District Bd. v. Graves County Fiscal Court, Ky., 479 S.W.2d 27 (1972), indicates that the court considered that CR 72.01 and 72.02 [appeal must be taken within 30 days from the date the judgment is entered] applied to appeals from fiscal court orders. However, today we find that CR 72.01 expressly declares that Rule 72, governing appeals, applies only to appeals from the district court to the circuit court. Thus CR 72.01, as last amended, was adopted October 14, 1977, effective January 1, 1978. This indicates to us that the Supreme Court of Kentucky, in promulgating its rules of Civil Procedure, apparently believes that there is no statute in existence comparable to KRS 23.030.