Request By:
Mr. Roger Williams
Jessamine County Court Clerk
Courthouse
Nicholasville, Kentucky 40356
Opinion
Opinion By: Robert F. Stephens, Attorney General; Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 24, 1978 in which you state that the County Judge-Executive has received a petition requesting an election to terminate the commission form of government in the City of Nicholasville and thereby revert to the councilmatic form of government.
The Judge entered an order pursuant to KRS 89.290 directing that the election be held at the next regular election. Under the circumstances you raise the following questions:
"1. When is the 'next regular election' and can this issue be placed on the ballot of the May Primary or the general election in November?
2. Is the borad of elections the body referred to in KRS 89.290 as the "other officer" appointed to hold the election?
3. Is it mandatory for the county clerk to check the names on the petition against the voter registration books to see if they are legal voters in the city, even if it is not mentioned in the court order from the County Judge-Executive?"
In response to your initial question the next regular election would be this November 1978. The question could under no circumstances be presented at the May Primary in view of Section 148 of the Constitution requiring that there be only one regular election each year in Kentucky and that must be held on the first Tuesday after the first Monday in November. There are four types of elections that are constitutionally declared to be exceptions. However, none of those four exceptions involve this type of election. See
Ginsburg v. Giles, 254 Ky. 720, 72 S.W.2d 438 (1934).
Our response to your second question would be to the effect that the reference in KRS 89.290 concerning those officers appointed to hold the election, refer to the County Board of Election and the County Clerk who is chairman of the Board and responsible for setting up the voting machines for all elections.
Our response to your third question would be in the negative. The duty of the County Clerk is limited to reviewing the face of the petition to determine whether or not it appears regular and in conformance with the statutory requirements.
Wilkins v. Duffy, 114 Ky. 111, 70 S.W. 668 (1902). This review would we believe also include determining whether or not the names listed on the petition equal 33-1/3% of the votes cast in the city at the last preceeding general election. However, we do not believe he is required to go behind the petition and check the name against the registration records. There is an exception to this rule, however, and that is when the clerk is requested by an interested citizen to check the names of the petition to determine whether or not they are registered voters, he is obligated to do so.
Bach v. Keith, Ky., 324 S.W.2d 393 (1959); OAG 68-502 and 73-681, copies of which we are attaching.
As you know of course any interested citizen of the city can file a suit to test the validity of the petition or have access to the registration records and check the names himself.