Request By:
Honorable J. Wirt Turner, Jr.
Assistant County Attorney
for Henry County
405 North Main Street
New Castle, Kentucky 40050
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of August 23 in which you relate that a question has been raised as to whether one of the magisterial candidates nominated at the May primary legally resides in the particular magisterial district from which he was nominated. You relate that no judicial proceedings to contest the election were filed by the candidate. Under the circumstances, you raise the following question:
". . . Is it incumbent upon the Fiscal Court or the Board of Election Commissioners or any other county agency to make an investigation into whether or not this prospective magistrate resides within his magisterial district?"
Our response to your question would be in the negative. The qualifications of the candidate in question should have been raised by either an opposing candidate or a qualified voter entitled to vote for the candidate prior to the May primary under the terms of KRS 118.176. In addition, we cite you the case of Fletcher v. Wilson, Ky., 495 S.W.2d 787 (1973), in which it was pointed out that questions concerning a primary candidate's qualifications or the sufficiency of his declaration papers must be brought before the primary by either a qualified voter entitled to vote for said candidate or an opposing candidate and, as a consequence, they cannot be brought after the primary. See also the case of Fletcher v. Wilson, Ky., 500 S.W.2d 601 (1973); and Fletcher v. Teater, 503 S.W.2d 732 (1974).
Under the circumstances, neither the fiscal court, county board of elections or any other county agency has any duty or authority to investigate or intervene in the matter of a candidate's qualifications. Of course, if the candidate is elected and assumes the office without possessing the residential qualifications required by the Constitution, he would be subject to removal as a usurper by the commonwealth attorney under the terms of Ch. 415 KRS.