Request By:
The Honorable F. Byrd Hogg
Circuit Judge
47th Judicial Circuit
Commonwealth of Kentucky
Whitesburg, Kentucky 41858
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of November 9 in which you raise the following questions:
"In the case of the Commonwealth Attorney, we have not had a Commonwealth Attorney for the last two or three years by reason of the resignation of Harry M. Caudill. Peyton Reynolds ran unopposed in the primary for the office and, of course, was nominated and this past election was elected to the office. Since the office of Commonwealth Attorney for this district was vacant, can he, upon certification of his election by the Board of Election Commissioners, immediately be sworn in and take over the office of Commonwealth Attorney before the first of the year?
"The other office is the office of County Attorney and it was vacated also by reason of a resignation, and Randy Bentley was nominated without opposition in the primary for that office but after the primary decided that he wanted to take the office of District Judge. Yesterday, on election day, there was a write-in campaign for him as District Judge, and since we did not have a candidate for District Judge, could he resign the office of County Attorney for which he was on the ballot unopposed, effective the first Monday in January, and be sworn in as District Judge based upon his write-in campaign? "
In response to your initial question, the fact that Mr. Reynolds was elected on November 8 to the office of Commonwealth Attorney for the unexpired term [which does not expire until January, 1982] would entitle him to enter the office as soon as he receives his certificate of election and executes the oath of office. This question was decided in the case of Jones v. Sizemore, 117 Ky. 810, 79 S.W. 229 (1904), which interprets § 152 of the Constitution relating to the filling of vacancies in all elected offices other than school elections.
In answer to your second question, Mr. Bentley, who was listed on the November ballot as a candidate for County Attorney and duly elected, and who also received at the same election sufficient "write-in" votes to elect him to the office of District Judge [no candidate having filed for the office], was legally elected to both offices but obviously must choose between the two.
Since Mr. Bentley was elected to both offices but desires to hold the office of District Judge, he should resign from the office of County Attorney following being certified as the duly elected County Attorney before he is to take office on the first Monday in January, thereby avoiding the development of an incompatible situation were he to attempt to qualify for both offices before resigning one of them. This procedure would create a vacancy in the office of County Attorney at the beginning of the regular term that can be filled by appointment by the County Judge pursuant to KRS 63.220, subject to an election for the unexpired term in accordance with § 152 of the Constitution.