Request By:
Mr. J. Chester Porter
Bullitt County Attorney
217 Buckman Street
Shepherdsville, Kentucky 40165
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of June 20 in which you seek an opinion concerning the following:
"One of the two candidates for the office of District Judge in the 55th Judicial District, Bullitt County, Kentucky has practiced law for approximately six years. His practice of law was primarily in Jefferson County until he moved his office to Bullitt County in the summer of 1975. During this time he was a registered voter in Jefferson County and maintained his own personal residence in Jefferson County. On June 1, 1976, this candidate moved his personal residence to Bullitt County and registered to vote in Bullitt County. During this time prior the candidate was registered to vote in Jefferson County.
"Based on the above fact situation, I am requesting an opinion as to whether this candidate meets the Constitutional Qualifications necessary to run for the office of District Judge in the November General Election, in view of the fact that he will not have two years residence in Bullitt County until June 1, 1978.
"If elected could this candidate serve in the office of the District Judge, if he was not challenged prior to the November Election.
"What are the procedural steps necessary to remove this candidate from the November General Election Ballot and who would the proper party be to take these steps."
Section 122 of the Constitution provides, in effect, that to be eligible to serve as a justice of a district court a person must have resided in the district from which he is elected two (2) years next preceding his taking office.
Legal residence is based on fact and intention and it is often difficult for this reason to determine a person's legal residence. See Nunn v. Hamilton, 26 S.W.2d 526, 233 Ky. 606 (1930). The courts have said that intention is the dominant factor in determining legal residence and when actual residence is established, coupled with the intention to make one's home at that address permanently, the person becomes a legal resident even though he lives elsewhere temporarily. See also the case of Everman v. Thomas, 303 Ky. 156, 197 S.W.2d 58 (1946). Registration, however, does not always determine legal residence, as one may establish legal residence elsewhere long before reregistering. Thus, the question of legal residence can only be determined by the courts, based on the individual's intention and all the factual evidence involved.
If the candidate in question is elected for the office of district judge, he is of course entitled to serve as such, even though he may not possess the legal qualifications, until he is removed pursuant to § 121 of the Constitution. The qualifications of a candidate cannot be tested after his election. Fletcher v. Teater, Ky., 503 S.W.2d 732 (1974).
With respect to the procedural steps necessary to remove a candidate's name from the ballot, who allegedly does not possess the necessary qualifications, we refer you to KRS 118.176 which provides for the filing of a motion before circuit court. Such action can be filed by any qualified voter entitled to vote for such candidate or by an opposing candidate.