Request By:
The Honorable William G. Kenton
Speaker, House of Representatives
State Capitol
Frankfort, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 10 in which you relate that you have been advised to the effect that a vacancy has occurred during the current special session in the House of Representatives. Under the circumstances, you seek an opinion as to the detailed steps required for calling a special election to fill said vacancy, and, in addition, when said writ of election is required to be issued as well as the procedure for delivery to the sheriff.
There are a number of statutes applicable to your question which we will quote in part as follows:
KRS 118.730
"When a vacancy occurs in either house of the general assembly during its session, the presiding officer of the house in which the vacancy occurs shall issue a writ of election; . . ."
KRS 118.740
". . . A writ of election issued under KRS 118.730 shall be forwarded by mail to the sheriff of each county in which the election is to be held, in sufficient time to enable the sheriff to give notice of the election at least fifteen (15) days before the day of election, and no such writ shall be issued unless it will enable the sheriff to give such notice. . . ."
KRS 118.750
"Immediately on receipt of a proclamation or writ of election, or other sufficient information thereof, the sheriff shall give notice thereof by publication pursuant to KRS Chapter 424 and by handbills posted at the courthouse door and at the several places of voting."
As the above statutes indicate, when a vacancy occurs during a session of the legislature, whether it be special or regular, the presiding officer of the house in which the vacancy occurs must issue a writ of election. In this case, it is of course the speaker of the house.
The writ of election must be delivered by mail to the sheriff of each county in which the election must be held to fill the vacancy in sufficient time for him to publish the writ pursuant to the terms of Ch. 424 KRS before the day of the special election. The publication statutes [KRS 424.130(1)(d)] would be applicable to the special election and would require the publication to be not less than seven (7) nor more than twenty-one (21) days before the election, however, since KRS 118.740 requires at least a fifteen (15) day minimum deadline for publishing the notice, the seven-day minimum requirement under the publication act would not be applicable, so the publication should, if possible, be made between the 15th and the 21st day before the election.
The next question to be determined concerns when the election must be called by the speaker. As pointed out in OAG 76-267, KRS 118.730 does not fix a date or time for holding a special election of this type or, in other words, when the presiding officer or governor must issue the writ of election. We did cite in said opinion the case of
Furst v. Gray, 240 Ky. 604, 42 S.W.2d 889 (1931), in which the court declared and we quote from the opinion:
". . . a special election to fill a vacancy in the General Assembly may be held on any day including general election day within the discretion of the officer issuing the writ. The Court did indicate that vacancies in the General Assembly should not continue for any undue length of time, presumably on the principle the people of the district should have adequate representation particularly when the legislature is in session. As an example, Senator John Mahoney died in the latter part of 1966. The Governor did not call a special election until the regular November election in 1967, presumably since the legislature was not in session during this period."
In the case of
People ex rel. Fitzgerald v. Voorhis, [N.Y. 1918] 119 N.E. 106, the court held that the Governor had discretion as to when he issues the proclamation to fill a congressional vacancy and in this respect we quote the following excerpt:
"The proclamation of the Governor was issued by him in obedience to the commands of the federal Constitution, which provides:
"'When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies. '
"The only basis for holding the special election is the Governor's proclamation. Whether a special election of the character of the one under consideration shall be held, and if so when, involves a matter of executive discretion with which the courts have no right or power to interfere.
People ex rel Broderick v. Morton, 156 N.Y. 136, 50 N.E. 791, 41 L.R.A. 231, 66 Am. St. Rep. 547; Matter of Guden, 171 N.Y. 529, 64 N.E. 451 . . ."
On the other hand, in the case styled
Jackson v. Ogilvie, 426 F.2d 1333 (1970), the U.S. Court of Appeals of the state of Illinois declared that the Governor had no discretion in the matter but had the duty to issue the proclamation and if he failed to issue it, he could be compelled to do so by mandatory injunction.
It would thus appear that the speaker has without question, discretion as to when he issues the writ of election, which means that he may do so within a reasonable time based upon the factual situation. If, for example, the session will continue any length of time or another special session may be called at some future time, the writ should be issued for the office to be filled in time for the people in the district to be properly represented during the session.
The additional question is raised concerning whether the requirements under KRS 118.740 that the copy of the writ of election shall be forwarded by mail to the sheriff of each county involved, could be construed to permit a hand delivery of the writ to the various sheriffs.
Though the statute specifically says that the writ shall be forwarded by mail and such is usually construed to be mandatory, we believe that if the time element involved is such that hand delivery would be necessary to permit the election to be held in connection with the present short session, the courts would sustain it, provided the receipt of the writ is properly receipted in writing by the sheriff so that there will be documented evidence that the writ had actually been received. We caution, however, that we have found no specific case in point in the short time available in responding to this matter.