Request By:
Col. C. L. Wallen
P.O. Box 1
Monticello, Kentucky 42633
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an opinion of this office concerning KRS 242.020, which relates to a petition for a local option election. That statute reads:
"(1) A petition for an election shall be signed by a number of constitutionally qualified voters of the territory to be effected, equal to twenty-five percent (25%) of the votes cast in the territory at the last preceding general election. The petition may consist of one (1) or more separate units, and shall be filed with the county clerk.
"(2) The petition for election, in addition to the name of the voter, shall state also his post office address and the correct date upon which his name was signed.
(3) No signer may withdraw his name or have it taken from the petition after the petition has been filed. If the name of any person has been placed on the petition for election without his authority, he may appear before the county judge/executive before the election is ordered and upon proof that his name was placed on the petition without his authority, his name may be eliminated by an order of the court. When his name has been eliminated, he shall not be counted as a petitioner.
(4) After a petition for election has been filed, the county judge/executive shall make an order on the order book of the court directing an election to be held in that territory. "
Question No. 1:
"Does the county court clerk have legal authority to put two hundred and twenty six names on 'Question of Signature list,' when said names on the local option petition matched voter registration cards as to names, address, social security number, etc? The only complaint of the county clerk was 'these are not genuine signatures. '"
The petition must be filed with the county clerk. However, it is the county judge/executive who is responsible for examining the petition on its face to determine whether the petition is correctly filed under the express terms of the statute. The county judge/executive can call on the clerk in assisting him in comparing the petition with the voters' registration data on file in the clerk's office. Where the county judge/executive has good reason to believe that a particular signature is not genuine, he may ask the person with that name to voluntarily come to the county judge/executive's office to give evidence about it, one way or the other. If it appears to the county judge/executive, after such evidence, that someone other than the so called petitioner signed his name without authority, the county judge/executive may eliminate such name by an order in his Executive Order Book, and such signature will not be counted as a petitioner. Where particular petitioners will not come before the county judge/executive voluntarily, the latter may use the services of a handwriting expert if he deems it necessary.
Under KRS 242.020(4), after a petition for election has been filed, and assuming that he finds that the statute has been complied with as to signatures, etc., the county judge/executive shall enter an order in his Executive Order Book, maintained by the county clerk, directing an election to be held in the territory. The statute refers to the "order book of the court"; however, since the county judge/executive is only an executive officer, and not a judicial judge or court, it can only refer to his Executive Order Book.
The county judge/executive's role in examining the petition and directing or ordering an election is only quasijudicial in nature at the most. Keller v. Kentucky Alcoholic Beverage Control Bd., 279 Ky. 272, 130 S.W.2d 821 (1939) 824. See §§ 27 and 28, Kentucky Constitution.
Question No. 2:
"Does the county judge/executive have power to subpoena on 226 names presented to him marked only as 'Question on Signature' ?"
The county judge/executive has no authority to issue subpoenas in connection with the examination of the petition. An administrative officer has the power of subpoena where such authority is given to him under an express or explicit statute. See 97 C.J.S., Witnesses, § 5, p.p. 352-353. A subpoena is a serious matter which cuts across one's freedom of locomotion. It requires a person to be at a certain place at a certain time. Even the courts can issue a subpoena only if it has before it some proceeding to which the witness is being summoned. United States v. Holland (U.S.C.A. -5, 1977) 552 F.2d 667, 674. Thus the very seriousness of the process of subpoena is undoubtedly at the foundation of the rule requiring an express statutory authority for administrative officers if it is to exist at all.
Question No. 3:
"Can the county judge/executive strike 98 of these names from the local option petition on his personal comparison of signatures on the 'Question of Signature List'?"
We answered that under Question No. 1.
Question No. 4:
"Can the county judge/executive strike names from the local option petition when the person is not the person who signed or had his name appended to the petitiopn and the address is not the same as that shown on the petition?"
We have dealt with the genuineness of signature under Question No. 1. So long as it appears a signer is a constitutionally qualified voter in the county and that he signed his own name, a misstatement as to his residence would not be a basis for the county judge/executive's ordering the elimination of that name from the petition.