That's the question the state Supreme Court will face when it takes up the case of a proposed limestone mine in Boone County. And local governments across the state will be waiting for the answer. The decision could set standards for what city council or Fiscal Court members can say to their constituents about a pending zone change without being branded as biased.

"There is a real good issue here," said Boone County Administrator Jim Parsons. "Elected officials are in kind of a box. They are acting as a judge, but they are still elected representatives who are talking to their constituents."

In 2000, the Fiscal Court voted to deny a zone change for Hilltop Basic Resources, which wanted to build a limestone mine on 534 acres near Petersburg.

Last year, a divided state appeals court overturned Fiscal Court's decision, citing alleged bias of two commissioners.

Hilltop argued commissioners Robert Hay and Cathy Flaig made up their minds before the vote and therefore violated the company's due process rights.

The appeals court agreed, saying that comments the commissioners made to residents left the "unavoidable perception" that they were biased and therefore not an "impartial tribunal."

The case underscores that "Kentucky law has reached an impasse over" whether zoning decisions by local governments are legislative or adjudicatory, as in courts of law, wrote Appeals Court Judge William Knopf, in a dissent.

The Supreme Court agreed last month to hear the case, after Hilltop and Boone County appealed.

In his motion, Covington attorney Jeff Mando asked the court to clarify "the duties and responsibilities of local elected officials in making zoning decisions."

Holding legislators to the standard of judges just isn't realistic, Mando said, because they are elected based on positions, stances and predispositions they express during campaign and while in office.

"The Fiscal Court members don't wear black robes, they don't have a gavel," Mando said Friday. "That's not the role they fill."

By overturning Fiscal Court's vote based on conversations with constituents, the court, "has silenced elected officials and chilled the debate encouraged in a legislative process."

And silence doesn't always equal impartiality, Knopf noted in his dissent. Overturning Fiscal Court's decision based on public statements "merely places a premium on the decision-maker's silence," Knopf wrote, "not upon his or her objectivity."

Mando also asked the court to look at the merits of the case, because Fiscal Court believes its decision was justified.

In the county's land use plan, the land was designated as agricultural and developmentally sensitive, he said. Area residents opposed the mine because of pollution, lowered property values and possible damage to homes .

"There is no evidence that they decided this case on anything other than what was put into the record at Planning Commission," Mando said.

The appeals court sent the case back to Fiscal Court with instructions to hold a "proper hearing" on the zone change.

In its appeal to the Supreme Court, Hilltop's lawyers argued that sending the case to Fiscal Court was futile because there are still two members on the court who heard the original case. The members would have to remove themselves, leaving the court unable to vote, wrote Louisville attorney Paul Whitty, who is representing Hilltop.

The Supreme Court should declare that the zone change is approved, he wrote.

The Supreme Court is expected to hear arguments in the case early next year.

E-mail bkelly@enquirer.com