Thursday, March 11, 2004

Boone residents appeal ruling

Federal court hears case

By Brenna R. Kelly
The Cincinnati Enquirer

When Jennifer Warner spoke out against a mine four years ago, lawyers sent a sheriff's deputy to her home with a subpoena.

On Wednesday, she was in a federal appeals court defending the public's right to speak out without that happening.

Warner and 14 other Boone County residents were subpoenaed by mining company lawyers who wanted their phone records, bank records, e-mail lists and other personal information.

"What they are trying to do is intimidate them into not speaking out against the mine," said attorney Edwin Kagin, who is representing Warner and resident Aimee Boese, who sued the attorneys, mining company and landowners in 2002, accusing them of violating their civil rights.

U.S. District Judge David Bunning threw out the case but Kagin appealed to the 6th U.S. Circuit Court of Appeals in Cincinnati, which heard oral arguments in the case Wednesday.

Attorneys for the mining company and its lawyers said the subpoenas were needed to show that the Boone County Fiscal Court members had communication with the residents and had possibly made up their minds before the vote.

"It was not to harass, it was to learn the evidence that was needed to win the case," said attorney Beverly Storm, who represents Greenbaum, Doll and McDonald, the mining company's law firm.

The case stems from a lawsuit involving Hilltop Basic Resources, which wanted to build a limestone mine in Boone County.

In 2000, Boone County Fiscal Court denied a zoning change Hilltop needed to build the mine.

When Hilltop appealed the decision, Boone County Circuit Judge Jay Bamberger allowed Hilltop's attorneys to conduct discovery, which included issuing subpoenas to the residents.

Fiscal Court's denial of the zoning change was upheld by the Circuit Court, but last October, the Kentucky Court of Appeals reversed that decision, citing the alleged bias of two county commissioners. In its appeal, Hilltop claimed that the commissioners had pre-judged the issue because they expressed opinions about it to residents before the vote.

Boone Fiscal Court has appealed the case to the Kentucky Supreme Court, which has not decided yet if it will hear the case.

In front of a panel of three appellate judges Wednesday, Kagin argued that the residents who spoke out at a public meeting should be considered a class whose civil rights were violated.

In his argument, Hilltop's attorney Thomas Prewitt said that Warner and Boese were trying to find a remedy in federal court because they lost in state court.

The fact that the underlying zoning change case has not been resolved makes her lawsuit more important, said Warner, who owns a bed-and-breakfast near the site of the proposed mine.

Kagin and Warner said the subpoenas will have a chilling effect on other residents who oppose a development near their homes. "One guy said he would never speak at a public hearing again," she said.


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