Request By:
Honorable Jesse Bates
Mayor, City of Jenkins
Box 568
Jenkins, Kentucky 41537
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of July 26 in which you seek an opinion concerning the following questions:
"1. The City of Jenkins is a City of the 4th class, which operates under the Councilamatic form of government. The 1960 Legislature passed a law requiring all City candidates, both party candidates and independent candidates must file before the primary election. (I am attaching a copy of an opinion to this letter) HAS THIS LAW BEEN REPEALED OR MODIFIED?
"2. As Democratic Chairman of Letcher County, I have been requested to ask your opinion of the people in a rest homes eligiliby to vote. In other words, we have a rest home here in the City of Jenkins, which has about forty people from different precincts of this county and other Counties, also other states. Some of these people has been adjudicated incompetent by the Circuit Court, to manage his estate, etc. This rest home is located in the West Ward of the City of Jenkins and the Administrator of this home has registered these people in the West Ward of The City of Jenkins. My question: ARE THESE PEOPLE LEGAL VOTERS IN THE CITY OF JENKINS OR SHOULD THEY VOTE IN THEIR RESPECTIVE PRECINCTS FROM WHICH THEY CAME?"
In response to your initial question, cities of the fourth class operating under the councilmanic form of government are no longer governed by KRS 86.225, requiring all city candidates to file their notification and declaration papers or petitions as independents fifty-five days before the May Primary. This statute was repealed in 1968, Chapter 144 of the Acts.
Since the repeal of KRS 86.225, candidates for municipal office who desire to run as independents may file their nominating petitions not less than fifty-five days before the November election, which would be not later than September 14, pursuant to KRS 118.365(4). OAG 60-916, referring to KRS 86.225, therefore is no longer the law, and it is hereby withdrawn.
In response to your second question concerning the right of persons confined to rest homes to register and vote as a resident of said home, it would depend upon whether or not they have established legal residence at such a home. Legal residence is based on intent and the factual evidence, as held in a number of cases such as
Nunn v. Hamilton, 233 Ky. 663, 26 S.W.2d 526 (1930). Thus if a person is confined to a rest home more or less on a permanent basis, they would have the right to declare that such home was their legal residence even though they may have been registered elsewhere.
Concerning those individuals that have been adjudicated incompetent, we are enclosing copies of two opinions, OAG's 76-549 and 73-700, in which we point out that there is a legal distinction between the term "insanity" and the term "incompetent, " and as a consequence a person who has been declared incompetent by the court would nevertheless be entitled to register and vote and would not be disqualified by reason of insanity under Section 145 of the Constitution.