Request By:
Honorable Harold DeMarcus
State Representative
Room 332, State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of February 21 in which you present the following questions and related facts:
". . . Question: Would the following individual be eligible to run in the May 1977 primary and the November general election for the office of County Attorney?
"Facts: This individual will be 27 years old at the time of the May primary. He graduated from law school in May 1975 and was admitted to the Kentucky Bar October 1975. Immediately upon his admission to the Kentucky Bar, he established a part time practice of law, with a separate office established in his own home with separate facilities for that office, including a separate business telephone. He continued practicing in this part time office until June 1976, at which time he entered into a full time partnership in the practice of law and where he has continued to practice to date and will do so in the future. This individual has been a resident of the county in which he intends to run for a period of twenty (20) years.
"I am interested as to whether this individual will be qualified to run in two particular areas. First, is this individual eligible under the provision requiring that he be a licensed practicing attorney for two (2) years? I am specifically interested as to how the two year period is calculated. Secondly, I am interested as to whether this individual would qualify under the provision that he be a 'practicing attorney' for this period of two years."
Section 100 of the Constitution provides that no person shall be eligible to the office of county attorney unless he shall have been a licensed practicing lawyer for two (2) years. In the case of Kirkpatrick v. Brownfield, 97 Ky. 558, 31 S.W. 137 (1895), the Court of Appeals held that where the Constitution provides that no person shall be eligible for a particular office unless he possesses certain qualifications, it is sufficient that a person elected to the office possess the required qualifications at the time fixed for taking the office unless it is expressly provided that he shall possess the qualifications at the time of the election, in which case he must possess the qualifications by the November election.
Thus, in so far as the county attorney's office is concerned, Section 100 of the Constitution would require him to be a licensed practicing attorney for two years at the time he takes office on the first Monday in January of 1978. As a consequence, the individual in question who was admitted to the bar in October, 1975 and who immediately established a part time law practice would possess the two-year requirement at the time he enters office.
In response to your second question, we also believe that the individual in question would be considered as having practiced law during the two-year period in question. Referring to the case of Commonwealth v. McCall, 256 Ky. 526, 76 S.W.2d 594 (1934), we find where the qualifications of an individual seeking the office of city attorney were in issue under a statute requiring the office holder to have been a practicing attorney for two years prior to his appointment. This candidate had been licensed to practice law many years before his election but he had practiced in a very limited way and most of his time had been devoted to other pursuits. Nevertheless the court, in declaring him eligible, stated:
"The statute, as will be seen, merely provides that to render one eligible for the office of city attorney he shall, in addition to other things enumerated, have been a practicing lawyer for two years. There is no condition or restriction as to when he shall have been engaged in such practice with relation to the time of his election or qualification, nor as to the extent of his business or experience while engaged in the practice of his profession. . . ."
See also the case of Howton v. Morrow, 269 Ky., 1, 106 S.W.2d 81 (1937).