Request By:
Mr. Robert M. White
Adair County Clerk
Columbia, Kentucky 42728
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 1 in which you raise the question as to whether or not a county clerk can be held liable for not accepting a notification and declaration paper after normal working hours on March 30, the deadline for filing.
Our response to your question would be in the negative. We first refer to the case of Duncan v. Queenan, 259 S.W.2d 60 (1953), wherein the court indicated that filing papers could be accepted by the clerk up until midnight of the final filing day. On the other hand, there is no statute or case that we have been able to find that requires the filing officer to keep his office open beyond his regular office hours for the purpose of accepting a candidate's nomination papers, though he obviously may do so in view of the language expressed in the Duncan case, supra.
The general rule as expressed in 29 C.J.S., Elections, § 137 and 25 Am. Jur. 2d, Elections, § 140, is that in referring to the last day for filing, the statutes mean during the usual business hours of the office of the person designated to receive the nominating papers. However, where the officer remains after hours and keeps his office open, it is his duty to receive and file such papers which may be presented to him at such time.
Next referring to the case of Johnson v. Holmes, Secretary of State, 269 N.W. 405, 198 Minn. 192, we find a case where the last day for filing petitions for nomination occurred on Saturday. The office of the Secretary of State customarily closed at 12:00 noon on Saturdays, there apparently being no statute fixing the time for closing. The court held that because in a given case the last day for filing may fall on a Saturday, it does not mean that the office hours for that day are to be changed. The court further said that the closing hour of the office was the usual one and was well known and that the Secretary of State was not required to vary from the usual custom on this date and therefore was not required to accept the candidate's nomination paper after closing hours.
Under the circumstances, therefore, we believe that though the clerk may keep his office open beyond the regular closing time on March 30 [the deadline for filing] for the purpose of accepting a candidate's nomination papers, he is not legally required to do so.