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Fiscal Court to pay for train lawsuit

By Greg Bird

The Fiscal Court voted to pay for half of the fees of Lexington Attorney Mark Wohlander, who was retained by the Pulaski County Fiscal Court last week to represent their Sheriff and County Attorney in the same case. An offer was extended to local officials to have the attorney represent all four defendants in the case: Sheriffs Greg Speck and Randy Waters, as well as County Attorneys Martin Hatfield and Conley Chaney.
The Association of American Railroads filed a lawsuit in federal Court last month naming both sheriffs and attorneys as defendants, asking for injunctive relief from several citations issued in both counties over the blockages. The AAR is a non-profit trade association based out of Washington, D.C. that represents major freight railroad companies in the United States.
Beshear, who was also named as a co-defendant in the suit, had informed the county officials that he will not represent them in the lawsuit, claiming his policy is to represent commonwealths attorneys, not county attorneys.
Friday Beshear and the Association of American Railroads entered a motion to an agreed order dismissing the Attorney General from the lawsuit.
“The other named Defendants are constitutionally elected officers who, (under the Kentucky Constitution) have exclusive statutory authority to enforce these misdemeanor provisions and who will thus adequately represent the Commonwealth,” the filing states.
Kentucky Revised Statute 15.020 describes the authority of the Attorney General thusly: ”the Attorney General is the chief law officer of the Commonwealth of Kentucky and all of its departments, commissions, agencies, and political subdivisions, and the legal adviser of all state officers, departments, commissions, and agencies…”
That motion removes the Attorney General from the case in which the AAR contends Kentucky’s statutes pertaining to the blockages of railroad crossings are in violation of federal law and impede interstate commerce – thus making them “void and unenforceable.
The irony in the move from Beshear is the Attorney General is considered the chief prosecutor and chief law enforcement officer of the state. Both Sheriff Waters and Speck were doing their sworn duty in enforcing a state statute when issuing the citations.
KRS 277.200 and KRS 525.140 have been used by the county Sheriffs in cases alleging stopped trains have blocked roadways for more than five minutes, thus violating the law.
The AAR is contending the state statutes interfere with interstate commerce laws, and is asking the Federal Court to void those laws.
Both McCreary County and Pulaski County have seen several issues with trains stopping and blocking railroad crossings for upwards of two hours in some circumstances.
Multiple citations have been issued against Norfolk Southern Railroad for the blockages, citing the public safety issue. Several residents in the areas impacted have complained about lack of access to the roads, and are concerned about potential problems arising if the need for emergency vehicle access to their neighborhood.
The lawsuit comes on the heels of several fines and citations issued to Norfolk Southern Railroad in McCreary and Pulaski counties over the past year – including a $17,000 Contempt of Court fine in Pulaski County last month.
Last week the Pulaski County Fiscal Court agreed to pay attorney fees for Sheriff Greg Speck and County Attorney Martin Hatfield in the case.
An offer to include Sheriff Randy Waters and Conley Chaney was made to Judge Executive Doug Stephens, who presented the idea to the McCreary County Fiscal Court Friday during a special session Friday.
The Fiscal Court agreed to foot half the bill for the attorney, amounting to approximately $125 an hour, up until the first hearing at least.
Judge Executive Doug Stephens defended the notion of fighting the lawsuit, stating Sheriff Waters was following the law when he issued the citation.
“We are only enforcing a state law, like you would a speed limit law, but the state Attorney General’s office has stated they will not represent Pulaski nor McCreary County,” he said. “So, we are left to defend our actions in trying to protect our citizens.”
County Attorney Conley Chaney said he does not believe the Attorney General is correct in refusing to defend a Kentucky statute.
“The Attorney General’s office is refusing to answer and defend an enforcement of state law,” Chaney said. “Rather, they say they were named improperly as a defendant.”
“I don’t think a parked train does a lot for interstate commerce, we’d be happy to see those trains moving,” Chaney said.
He noted the lawsuit does not name either McCreary County or Pulaski County as a defendant, only the sheriffs and attorneys in their official capacity.
Additionally, he said, the Attorney General’s position signifies his office feels that the citations should be dealt with at the county level and does not involve the state.
“Both Mr. Hatfield and I strongly disagree with the assessment that this is a county action,” he said.
The question put before the magistrates was” “does the county want to take on this fight, at least initially at the federal district level?”
Magistrate Jason Mann made the motion to join Pulaski County in paying for legal fees, at least through the first hearing. Magistrate Roger Phillips seconded, and the vote passed unanimously.
The Fiscal Court noted it was their duty to pursue the defense, but acknowledged the AAR has significantly more money and resources to fight the battle.
Phillips stated that while it is an inconvenience for the people that live behind the track, if they need an ambulance it is a life or death situation.
An official legal response from the defendants is expected to be filed by the end of this week.

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