Request By:
Honorable John M. Famularo
Assistant Commonwealth Attorney
Courthouse Annex
300 W. Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Watler C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of August 26 in which you raise the question as to whether or not your candidacy for the Fayette District Court would in any way affect your right to continue to serve as Assistant Commonwealth Attorney.
Our response to your question would be in the negative. We find nothing under § 165 of the Constitution, KRS 61.080, the Judicial Article, or related statutes thereto that prohibits a person holding an elective or appointive office from becoming a candidate for an elective office, including the office of District Judge. Generally speaking, incompatibility does not exist until the assumption of the second office that is incompatible with the first. See KRS 61.090. There are, of course, exceptions such as members of certain state boards and commissions and school boards becoming candidates for public office.
As you know, if you are elected to the office of District Judge, you could not continue to hold the office of Assistant Commonwealth Attorney and at the same time serve as judge. See OAG 77-186 which also points out that under § 123 of the Constitution once you are elected to the office of District Judge, you could not become a candidate for any elective office other than a judicial office.
Under the circumstances, your candidacy for District Judge in Fayette County would have no legal affect on your continuing to serve as Assistant Commonwealth Attorney.