                                                        RENDERED: NOVEMBER 2, 2017
                                                                   TO BE PUBLISHED




                                  2016-SC-000008-DG


BIG SANDY REGIONAL JAIL AUTHORITY                                        APPELLANT


                         ON APPEAL FROM COURT OF APPEALS
v.                          CASE NO. 2015-CA-001464-DR
                              FAYETTE CIRCUIT COURT
                           NOS. 13-C-08761 & 15-XX-00009


LEXINGTON-FAYETTE URBAN COUNTY                                             APPELLEE
GOVERNMENT



                    OPINION OF THE COURT BY JUSTICE KELLER
                              '
                                       AFFIRMING
                                             ,.   _,I




        Big Sandy Regional Jail Authority (the Authority) sued the Lexington-

Fayette Urban County Government (the Urban County Government) in district

court seeking reimbursement for the cost of housing prisoners held pursuant

to warrants issued by Fayette County courts. The district court found that the

Urban County Government is entitled to sovereign immunity, and it granted

the Urban County Government's motion to dismiss. The Authority appealed to

the   cir~uit   court, which affirmed, based on its finding that the county of arrest

controls responsibility for incarceration costs. The circuit court did not

address the issue of sovereign immunity, which it deemed moot. The Authority

filed a motion for discretionary review before the Court of Appeals, a motion
that Court denied. The Authority then sought discretionary review before this

Court, which we granted. Having reviewed the record, we affirm the circuit

court but for differe.nt reasons.

                                    I. BACKGROUND

      In the 1980s, the Kentucky Department of Corrections closed or

threatened to close county jails in Johnson, Lawrence, Magoffin, and Martin

Counties.· In order to meet their. statutory obligation to provide facilities for

incarcerating prisoners, the four    countie~   formed the Authority whose pu.rpose

was to construct and operate a regional jail, the Big Sandy Regional Detention

Center (the Detenti.on Center).

)     The Authority consists of ten members. Each of the founding counties

appoints two members, with Johnson County, the most populous of the

counties, receiving an additional member. The final member is the Johnson

County Jailer, because the Detention Center is in Johnson County. The

Authority is an independent body, and the only input the founding counties

have in the operation of the Detention Center is by way of appointment of the

Authority's mei:nbers through the respective counties' judge executives.

      The Authority has contracts with the state, the four founding counties,

and Elliott and Morgan Counties to house their prisoners in the Detention

Center. In exchange for housing those prisoners, the Authority is paid a per

diem by the counties and the state, with the four founding counties paying a

little less than the others. This per diem, along with a small amount from the




                                          2
Detention Center's commissary, constitutes the entirety of the revenue

available to operate the Detention Center.

       On March 21, 2013, the Authority filed suit against the Urban County

Government in district court. 1 In its complaint, the Authority listed a number

of prisoners who had been arrested by an officer from one of the four founding

counties based on warrants issued by Fayette County courts. Although the.

Authority believed it had no contractual obligation to do so, the Authority

agreed to house those prisoners in the Detention Center until officials from the

Urban County Government could arrange for their transfer to an Urban County

Government facility. The Authority considered those prisoners to be "Fayette

County prisoners" and billed the Urban County Government the per diem for·

each prisoner's stay in the Detention Center. The Urban County Government

refused to pay, which led to this action.

       The Urban County Government filed a motion to dismiss, and the

Authority filed a motion for summary judgment. In its motion, the Urban

County Government argued th;:it it was immune from suit and, if not immune,

the obligation to pay for the incarceration of prisoners falls on the arresting

county, not on the county that issued the warrant. In its motion, the Authority

argued that the Urban County Government had a statutory obligation to pay


        1 We note that the Authority initially named other counties but the Authority
voluntarily dismissed those counties, choosing to proceed against only the Urban
County Government. The Authority also initially filed suit in Johnson County district
court but moved to transfer the action to Fayette County district court, a motion the
Johnson County district court granted. Finally, we note that the Authority initially
filed the action on the district court's small claims docket but, without objection, the
court .transferred it to the regular. docket.

                                           3
for the incarceration of prisoners wh.o were being held pursuant to a warrant

iss-qed by a Fayette County court.      In its response to the Urban County

Government's motion, the Authority argued that the statute imposing the duty

on counties to provide for the incarceration of prisoners waives immunity by

implication.

         The district court found in favor of the Urban County Government and

dismis~ed    the Authority's complaint. In doing so, the court determined that

the Urban County Government is immune and that immunity had not been

waived either explicitly or implicitly. The Authority appealed to the circuit

court,   whi~h   affirmed, based on its finding that the county of arrest controls

responsibility for incarceration. The circuit court did not address the issue of

sovereign immunity.

         On appeal, the Authority argues, as it did below, Jhat Kentucky Revised

Statute (KRS) 411.025 requires a county that issues an arrest warrant to

provide for the incarceration of the prisoner arrested pursuant to that warrant,

regardless of where the arrest occurs. The Urban County Government argues

that KRS 411.025, when read in its      entir~ty   and in co:njunction with other

statutory provisions, requires the arresting county to provide for that

incarceration, regardless of what county issued the arrest warrant. The Urban

County Government also argues that it has immunity, which the Authority

disputes.




                                           4
                          . II. STANDARD OF REVIEW

      Resolution of this appeal primarily requires us to undertake

interpretation of a statute. The construction and application of statutes ·is a

matter of law, which we review de novo, Bob Hook Chevrolet Isuzu., Inc. v~ Com.

Transp.   Cab~net,   983 S.W.2d 488, 490 (Ky. 1998), without any deference to the

interpretation afforded by the circuit court. Cinelli v. Ward, 997 S.W.2d 474,

476 (Ky. App. 1998) (citing Louisville Edible Oil Products, Inc. v. Revenue

Cabinet Commonwealth of Kentucky, 957 S.W.2d 272 (Ky. App. 1997)).

                                   III. ANALYSIS

A. Statutory Interpretation

1. KRS 441.025

      When interpreting a statutory scheme, we seek to effectuate the

legislature's intent and "[t]he plain meaning of the statutory language is

presµmed to be what the legislature intended." Stinson v. Commonwealth, 396

S.W.3d 900, 903 (Ky. 2013) (citing Revenue Cabinet v. H.E. O'Daniel, 153

S.W.3d 815, 819 (Ky. 2005)). "The plain-meaning rule is consistent with

directions provided by the legislature on how to interpret the statutes enacted

by it." Wheeler & Clevenger Oil Co., Inc. v. Washburn, 127 S.W.3d 609, 614 (Ky.

2004) -(citing KRS 446.015; KRS 446.080(4)). "Only if the statute is ambiguous

or otherwise frustrates a plain reading, do we resort to extrinsic aids such as

the statute's legislative. history; the canons of construction; or, especially in the

case of model or uniform statutes, interpretations by other courts." Stinson,



                                          5
396 S.W.3d at 903 (citing Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d

542, 551 (Ky. 2011)).

      KRS 441.025(1) states: "The fiscal court of each county shall provide for

the incarceration of prisoners arrested in the county or sentenced o~ held by

order of the courts in the county." This statute is, at best, unclear, and, at

worst, inapplicable. However, it is the only statute we have. Therefore, we

must interpret it as   b~st   we can.

      The Authority argues that a county that issues    awarrant for an
individual is responsible for the costs of incarcerating that individual, even if

an arrest occurs in another county. The Urban County Government argues

that the county making the arrest is responsible for the costs of incarceration

regardless of which county originated the charges or warrant necessitating the

arrest. The Authority argues that, if the Urban County Government's

interpretation is correct, there is no reason for the second half of the sentence.

because the obligation would always fall on the arresting county. That

argument is. flawed. There are instances where a county, other than the

arresting county, would be responsible for housing prisoners. For example,

KRS 411.025 applies post-conviction to prisoners who have been sentenced by

order of the courts in the county and to inmates held by order of the court as a

result ofa probation violation. It also applies pre-conviction to inmates held by

order of the courts pending trial. It would additionally apply to those held for

contempt violations.



                                        6
      However, the Authority's argument that the county that issues a warrant

is responsible for incarceration costs is equally, if not more, flawed. According

to the Authority, the   arre~ting   county is only responsible for the incarceration

of prisoners if the arresting county is also the county that issued the warrant

for the prisoner. For this interpretation to be correct, the statute would require

an "and" instead of an "or" and would have been written as: "The fiscal court of

each county shall provide for the incarceration of prisoners arrested in the

county and   senten~ed   or held by order of the courts in the county." A prisoner

may be held pursuant to warrants from one county or multiple counties. The

Authority's argument does not account for such a       situ~tion.


      The Court believes that the correct interpretation begins and ends with

the premise of possession and that a prisoner's status flows from possession

and control. Thus, the prisoners in this case were prisoners of Johnson,

Lawrence~   Magoffin, and Martin counties because thos~ counties had

possession and control of the prisoners via arrest. Once Johnson, Lawrence,

Magoffin, and Martin counties relinquished the prisoners to Fayette County,

Fayette County became responsible for the costs of incarceration because the

prisoners would then be held by Fayette County pursuant to          an ord~r of the
Fayette County courts.

2. Relying on possession and control in interpreting KRS 441.025 is
consistent with the statutory scheme and criminal procedure practice.

      a. Statutory Scheme

      KRS 441 applies to the operation and management of county jails and

assigns financial responsibility for_ those jails to each fiscal court. Each county
                                            7
is obligated to incarcerate its prisoners, an obligation that can be fulfilled by

providing and maintaining a separate county-run jail or by contracting with

another county or city to house the county's prisoners. The General Assembly

did not mandate that counties reimburse each other for the costs of housing

prisoners held by order or judgment of another county. Had the General

Assembly wanted to impose that obligation, it could have done so. The absence

of any such statutory provision further supports our holding that the county

with possession of the prisoner bears the cost

      b. Criminal procedure practice

      We find additional support for our interpretation in the Kentucky Rules

of Criminal Procedure.

      Kentucky Rule of Criminal Procedure (RCr) 3.02(1) states:

              An officer making an arrest Uhder a warrant issued upon a
      complaint shall take the arrested person without unnecessary
      delay before a judge as commanded in the warrant. If the arrest is .
      made in a county othe·r than that in which the warrant was issued
      and the arrested person is not taken as commanded in the
      warrant, the arrested person shall be taken before a judge· of the
      county in which the arrest is made, who shall consider the
      defendant for release on personal recognizance and so release the
      arrested person or admit the arrested person to bail for his or her
      appearance before the proper judge .... If the offense is non bailable,
      or if the person arrested is unable to give bail, the judge shall
      commit that person to jail and he or she shall be taken as
      commanded in the warrant within a reasonable time by an officer·
      of the county in which it was issued.

      In other words, an arrested person must be taken without unreasonable

delay before a judge if not delivered to the county issuing the warrant. Thus,

the rule contemplates that the county of arrest has a responsibility for the

prisoners in its possession, and as such; the county of arrest should bear the
                                         8
costs. The rule further provides for transportation of the prisoner to the county

that issued the warrant.

      The Authority is concerned that there is no time limit during which a

charging county must pick up and transport a prisoner who is arrested and

held in another county. The Authority reasons that Fayette County will delay

picking up its prisoners in Johnson County to avoid the __,,costs of incarceration.

There is not an established definition for "unreasonable delay;" however; the

courts have held that 48 hours is not unreasonable, see County of Riverside v.

McLaughlin, 500 U.S. 44 (1991), and some local court rules in the

Commonwealth provide that the defendant will be arraigned no later than at

the next regular motion hour. Ky R Knott Magoffin Cir. Ct. Crim. Cases 2(A).

Thus, the county of arrest should release the ·prisoner or establish bail for the

prisoner within 48 to 72 hours.

      If not released, the prisoner will remain in the jail until the county

issuing the warrant arranges for transportation, which must be done within a

reasonable time. If the county issuing the warrant does not want the prisoner

to go free, that county will arrange for transportation. Otherwise, it runs the

risk that a judge in the   arrest~ng   county will release the prisoner on bail. Law

enforcement officers, and indeed elected county offidals, should have an

interest in the prosecution of the perpetrators of alleged crimes in their ·

communities. Furthermore, prosecuting attorneys have an interest in the just

resolution of alleged crimes committed in the counties from which they were

elected. We understand and note the Authority's concerns regarding undue

                                            9
 delay and its potential fiscal impact. However, for the aforementioned reasons,

 this Court has confidence in the abilities of our various counties and their

 elected officials to cooperate in the orderly administration of justice.

· B. Contract

       .Finally, it is undisputed that the Authority has contracts with the state,

 the four founding counties, and Elliott and Morgan Counties to house their

 prisoners in the Detention Center. The Authority has stated thatit has no

 legal obligation to accept prisoners from the Urban County Government or from

 any other county with which it has not contracted. The Authority is correct to

 the extent that it is only responsible for housing prisoners brought to it by

 counties with which it has a contract. For example, the Authority is not

 required to accept prisoners who were arrested in Fayette County because the

Authority does not have a contract with Fayette County and KRS 441.025

 mandates Fayette _County to provide for the incarceration of its prisoners.

 Certainly, the Authority can accept prisoners brought to it by ot}J.er counties,
                                  '

 but it does so at its own risk. As we have stated herein, law   enforce~ent


officials in the counties of Johnson, Lawrence, Magoffin, and Martin had an

obligation to arrest these individ;uals who had outstanding warrants against

 them, and therefore, the Authority was obligated to.accept these prisoners who

were arrested by officers in those counties. The Authority is entitled to

payment for its costs of housing these prisoners, an entitlement that comes

through the Authority's contract, which needs to be enforced aga.lnst the

appropriate counties: In this case, those counties are Johnson, Lawrence,

                                         10
Magoffin, and Martin which are obligated to pay the costs as the arresting

counties.

                               IV. CONCLUSION

      For the above reasons, we affirm the circuit court's order because the

Urban County Government was not responsible for the costs of incarcerating

prisoners not in its possession.

      All sitting. Minton, C.J., Cunningham, Hughes and Keller, JJ., concur.

Venters, J., concurs in result only by separate opinion which VanMeter, J.,

joins. Wright, J., dissents by separate opinion.

      VENTERS, J., CONCURRING IN RESULT ONLY: I concur in the result

reached by the Majority opinion, but I disagree with its reasoning. KRS

441.025(1) cannot answer the question before this Court because it was

drafted and enacted by the legislature to perform an entirely different function.

Wringing that statute to squeeze out an answer to the question before us is like

shaking an apple tree hoping that a peach will fall out. It may be, as the

Majorify laments, the only statute we have; but it will never produce the fruit

we need to resolve this dispute.

      Like the clever image that simultaneously appears to be the silhouette of

a vase or the silhouettes of two faces, KRS 441.025 when applied to this

controversy is perfectly ambiguous; a riddle without a solution. However, when

applied to its intended purpose, the statute performs perfectly well, and its

meaning is perfectly clear and unambiguous.



                                       11
                   .                                               ..
       ·I respectfully suggest that KRS 441.025(1) is simply inapplicable to the

 present controversy. We are loath to say that we have no law that governs this

 issue, but I find it preferable to accept the reality of that unappealing choice

 than to infuse ·that statute with meaning never put there by the legislature. As

 its title .portends, KRS 441.025 simply places the fiscal responsibility for ·

 incarcerating local prisoners-those who have either    b~en   arrested in the

 county or committed to jail by a court in the county-on the county

· government rathe_r thah upon local municipalities or upon the state

 government. Each subsection of KRS 411.025 is devoted to that purpose, and

 that purpose is entirely consistent with the remaining provisions of KRS

 Chapter 441.

       KRS 441.025(1) reads as follows.: "The fiscal court '"of each county shall

·provide for the incarceration of pris.oners arrested in the county or sentenced

 or held by order of the courts in the county." A less concise but grammatically

 equivalent restatement of the statute would read as follows:

       The fiscal court of each county shall provide for the incarceration
       of prisoners who have either been 1) arrested in the county or 2) .
       sentenced or held by order of the courts in the county.

       Plainly stated, county government ("the fiscal court") bears. the fiscal

 responsibility for the incarceration of a person 1) arrested in that county; or 2)

 sentenced or held pursuant to the order of a court in that county. The

 prisoners that are the subject of the pending controversy ~t equally within

 either category. They were arrested in counties served by the Big Sandy

 Regional Jail; and they were sentenced or held by orders of a court in Fayette

                                         12
     County. KRS 441.025 does not differentiate or prioritize the     fi~cal


     responsibility for incarceration in either circumstance. I see nothing in the

     language or grammatical structure of the statute that fayors the county of

    arrest over the county of the court order, or vice versa. The statute cannot

    resolve the conflict we face because it was not written to allocate the

    responsibility of incarceration between competing counties; it only establishes

    that county governments, rather than cities or the state, must bear that

    burden.

           Consequently, I would adhere to the general rule that in the absence of

    applicable statutes, common law principles are controlling. See Kenton &

     Campbell Benev. Burial Ass'n ·v. Goodpaster, 200 S.W.2d 120, 127 (Ky. 1946).

    Insofar as I can determine, there is no common law cause of action for a

    Kentucky county (or a regional entity standing in its place) housing a prisoner

    to recover its expenses from another county. I would therefore dismiss the

    claim of Big Sandy, leaving it holding the bag until the legisl;:iture fills the

    statutory gap with a solution of its choosing. Accordingly, I would affirm, as

    does the Majority opinion, albeit ·upo:r:i different grounds.

\          VanMetet, J., joins.

           WRIGHT, J., DISSENTING: I respectfully dissent frorh the majority's

    . interpretation of KRS 441.025(1). The statute reads: "[t]he fiscal court of each

    county shall provide for the .incarceration of prisoners arrested in the county or

    sentenced or held by order of the courts in the county." I point out that, in

    construing~   statute, "[w]e presume that the General Assembly intended for the

                                              13
·statute to be construed as a whole, for all of its parts to have meaning; and for

it to harmonize with related statutes." Shawnee Telecom Res., Inc. v. Brown,

354 S.W.3d 542, 551 (Ky. 2011) (citing Hall v. Hospitality Resources, Inc., 276

S.W.3d 775 (Ky. 2008); Lewis v. Jackson Er:iergy Cooperative Corporation, 189

S.W.~d   87 (Ky. 2005)).

      Appellant, Big Sandy Regional Jail Authority, argues that if the arresting ·

county is responsible for the cost of incarceration regardless of the county from

which the charges or warrant o'riginated; then the latter   ~lause   of the sentence

is meaningless. The majority disputes this interpretation and lists a number: of

circumstances in which a county other than the arresting county would be

responsible for the cost of incarceration. A closer examination of each of the

circumstances listed by the majority is necessary for this analysis.

      First, the majority points to postconviction prisoners sentenced by order

of a county's courts. In this instance, a prisoner would have tO be in the same

county as the court handing down the sentence. If the sentence is for a felony

conviction, then the state is responsible for the cost of post-judgment

incarceration. If the sentence is for a misdemeanor, then the sentencing court

would order the prisoner to be incarcerated in the jail of the county where the

court is located and in which the crime occurred.

      The next instance listed in the majority's opinion involves prisoners held

by court order for probation violations. The court hearing an. alleged probation

violation and .ordering a revocation would be the sentencing court. The court

would order the prisoner incarcerated in the county jail. The state would be

                                        14
responsible for felony prisoners and the county in which the court was located

and in ·which the crime occurred would be responsible for misdemeanor

prisoners.

      The majority opinion also listed prisoners held for contempt violations as

a possible example of a circumstance in which a county other than the

arresting county could potentially be responsible for housing prisoners.

Anyone sentenced for a contempt violation would be sen,tenced by the court in

which the contempt occurred. Therefore, the court would order the prisoner

incarcerated in the jail of the county in which the court was located and the

contempt occurred.

      The final circumstance listed by the majority is what occurred in the

present case. In this scenario, an inmate is held pre-conviction by order of .the

court pending trial. The prisoners in the current case were arrested on

warrants from Fayette County courts. The warrants were orders from Fayette
             I
County courts to arrest person accused of violating the   ~aw   in Fayette County

and to bring them before the courts in Fayette County. KRS 441.025 (1) states:

"the fiscal court of each county shall provide for the incarceration of prisoners .

. . held by order of the courts in the county." The inmates here were held

pursuant to orders from courts located in Fayette County, where the crimes

occurred.

      The officers in the counties served by the jail lacked the legal authority to

arrest the prisoners without the orders to arrest from Fayette County. The

statute is clear that the county responsible for the incarceration is the one in

                                        15
 which the court that ordered the incarceration is located. The court located in

 the county in which the crime occurred is the court that would have the case

 and the court that would be ordering the prisoner held.

       "[I]t has been long established the specific provision takes

 precedence over the general   prov~sion."    Porter v. Commonwealth, 841 S.W.2d

 166, 168-69 (Ky. 1992) (citing Morgan County Board of Education v. Elliott, 260

 Ky. 672, 86 S.W.2d 670 (1935)). The first portion of KRS 441.025(1) provides

 that each county will be responsible for the incarceration of prisoners arrested

 in the county. The second portion provides that the county will be responsible

 for prisoners held by orders of the courts in the county. If a person is arrested

 pursuant to a warrant from Fayette County, then he is being held by order of

· the courts in Fayette County. Therefore, the more specific provision that a .

 county is responsible for prisoners held by orders of the courts of the county

 controls-and Fayette County would be responsible for prisoners arrested

 pursuant to orders of the courts of Fayette County.

       Pursuant to KRS 431.005(1), an officer may arrest a person if they

 observe the crime being committed, have sufficient probable cause of a felony

 committed in their jurisdiction, or are ordered to do so by order of a court. If

 the arrest occurs because the officer observed the crime being committed or

had sufficient probable cause evidence of a felony committed in the officer's

jurisdiction, then the crime occurred in the county that incarcerated the

·prisoner. In short, an officer makes an arrest either for crimes that occur in

his county or pursuant to court order.

                                         16
      The majority states that "[t]he General Assembly did not mandate that

counties reimburse each other for the cost of housing prisoners held by order

or judgment of another County." I must respectfully disagree. The statute

specifically states which counties shall provide for the incarceration of

prisoners. It is not for this court to second-guess, alter or revise the

responsibility provided by the legislature. The fact that the legislature did not

specify how and when one county would reimburse another does not change

the fact that it specified who was responsible to provide for the incarceration.

      The language of the statute is clear and its meaning is plain. Each

circumstance described in the statute places the responsibility for

incarceration on the county in which the crime occurred and whose courts·

have the case. For those reasons, I dissent from the majority and would

reverse and remand.



COUNSEL FOR APPELLANT:

Nelson Theodore Sparks


COUNSEL FOR APPELLEE:

Charles Edwards Ill
Michael Keith Horn
LFUCG Department of Law




                                        17
