Request By:
Mr. Zelner Cossey
Trigg County Judge/Executive
Courthouse
Cadiz, Kentucky 42211
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In your letter your problem was stated as follows:
"In regard to our conversation on this date pertaining to a fiscal court member moving out of his district, I would appreciate receiving from your office, in writing the steps to be taken to fill the vacancy created by such a move, if by moving out of the district this automatically causes a vacancy to exist."
A justice of the peace is required to live in the district in which he was elected. Section 234, Kentucky Constitution. Section 142 of the Kentucky Constitution expressly provides that justices of the peace shall vacate their offices by removal from the district, respectively, in which they may have been elected.
The governor fills the vacancy in the office of justice of the peace. KRS 63.190.
The governor must fill the vacancy, pursuant to Section 152 of the Kentucky Constitution.
The regular term of the justice of the peace ends on December 31, 1981.
Since Section 152 deals with the phrase "next succeeding annual election" , the court, in Smith v. Ruth, 308 Ky. 60, 212 S.W.2d 532 (1948) 534, pointed out that presidential electors are "state officers" within the comprehension of Section 152 of the Constitution.
Thus the applicable language of Section 152 is as follows:
"If the unexpired term will not end at the next succeeding annual election at which either city, town, county, district or state officers are to be elected, and if three months intervene before said succeeding annual election at which either city, town, county, district or state officers are to be elected, the office shall be filled by appointment until said election, and then said vacancy shall be filled by election for the remainder of the term."
Since the vacancy has occurred under the terms of the constitution, and since the unexpired term of the justice of the peace will not end this coming November at which the state presidential electors will be elected, and since three months intervene between now and the next November election [1980], the governor fills the vacancy by appointment until this next November election, 1980. Then, at this next November election this vacancy shall be filled by election for the remainder of the term [term ends December 31, 1981].
Since there can be no primary for this next November election of 1980 for the remainder of the term, the Executive Committees of the major parties are authorized to make nominations for the November election of 1980, pursuant to party rules under KRS 118.115. The statement of nomination must be filed with the county clerk not less than 55 days before the November election of 1980, as provided by KRS 118.365(2).