Judge allows golf course wet-dry vote to proceed

Aug 16, 2008 (The Daily Independent - McClatchy-Tribune News Service via COMTEX) -- SCRK | Quote | Chart | News | PowerRating -- Aug. 16--CATLETTSBURG -- A judge on Friday denied an 11th-hour attempt by a church group to halt a local option election scheduled to take place on Tuesday in one Boyd County voting precinct.

Boyd Circuit Judge C. David Hagerman refused to issue an emergency injunction that would have prevented residents of the Garner precinct from voting on whether Sandy Creek Golf Course should be allowed to sell beer to its patrons.

However, Hagerman allowed the Greenup Baptist Association's lawsuit to proceed, leaving open the possibility that the results of the referendum could later be invalidated, assuming that Garner residents approve alcohol sales at the golf course on Tuesday.

Hagerman said that a "genuine controversy" exists over how the state statute under which Sandy Creek owners Rich and Tammy Mahar sought the wet-dry vote should be interpreted.

The basis for the lawsuit is a portion of the law pertaining to alcohol sales at golf courses that references the so-called "Ashland liquor law," which was passed in 1980 and allowed individual precincts in second-class cities to have local option elections. At the time it was passed, Ashland was the only city in Kentucky to which the law applied.

Under a law passed by the General Assembly in 2000, nine- and 18-hole golf courses in counties where residents have voted, in whole or in part, to repeal prohibition are permitted to have wet-dry elections. However, an amendment tacked onto the bill by state Rep. John Vincent, R-Ashland, excepts golf courses in "territories" that have gone wet via the Ashland liquor law.

James H. Moore III of Ashland, the attorney for the Baptist Association -- whose membership consists of about 50 Southern Baptist churches in a five-county area -- argued at Friday's hearing that the golf course statute did not provide the enabling legislation necessary for the election to be held.

"This election is not authorized by law," he said. "If the legislature has not authorized an election and we allow that election to go forward, we're damaging our whole system of government. The integrity of the process needs to be preserved."

Moore maintained that anyone who has a problem with the law should take that up with the legislature.

"The proper arguments need to be made to the proper people," he said.

But Boyd County Attorney Phillip Hedrick, arguing on behalf of the Boyd County Board of Elections, one of the defendants in the lawsuit, said he found it ludicrous to believe that the General Assembly would pass a law from which golf courses in every county in Kentucky except for Boyd could benefit, seeing as how, according to Moore's interpretation, Boyd would be the only county to which it would apply.

"I simply can't believe that the legislature ever intended to hamstring Boyd County and Boyd County alone," he said.

If that was indeed the case, Hedrick said, the law could well be unconstitutional because it would fall into the category of "special legislation."

Hedrick said it was his belief that the amendment was meant to apply only to golf courses located within Ashland city limits. While there were no such establishments then, nor are there any now, Hedrick said he believed they very could in the future.

"It's called annexation," he said.

Hedrick also took issue with the timing of the lawsuit, which was filed on Monday. He said he felt he was "the victim of litigation by ambush."

He said the plaintiffs knew about possible legal issues with the election far enough in advance that they could have sought an injunction to prevent the Mahars from even passing the petitions to get the issue on the ballot, rather than waiting until the week before the election to file suit.

Hedrick said it was the taxpayers of Boyd County who would suffer "irreparable harm" if the referendum was halted because of the money that has already been spent on it.

"We've got about 300 people out there in the Garner precinct who want their election," he said.

Hagerman said he thought there was merit to both Moore's and Hedrick's interpretations of the statute.

"This is a real close call," he said. "I'm hoping that when it's been fully flushed out, it becomes an easier call."

Under the law, the defendants have 20 days from the date they were served to file a response to the lawsuit. Hagerman said he anticipated that the entire matter could be resolved within 60 days.

"I want to digest it all and do my best to make a correct and right decision," he said.

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