Request By:
Honorable James Terry Hodges
City Attorney
City of Columbia
108 North Reed Street
Columbia, Kentucky 42728
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of April 23 concerning the election for city officers in the city of Columbia, a city of the fourth class. You initially relate that the charter incorporating the city of Columbia in 1893 provides that municipal officers would be elected on Tuesday after the first Monday in November with no requirement for holding a primary election. As a consequence, none has ever been held.
You further relate that the city did not enact an ordinance to provide that the city officers would be nominated and elected pursuant to KRS 83A.170 which calls for a special city nonpartisan primary. On January 27, 1981 a candidate filed for mayor with a slate of candidates for city council. The filing papers did not state the date of the election for which it was being filed and the county clerk marked it for the general election and not the May primary. Under the circumstances, you raise the following questions:
"1) Does KRS 83A.050 require the city of Columbia to now hold a primary election for its candidates for city offices even though it has never done so, and has passed no ordinances concerning this issue since SB 26 became law?
"2) Assuming the facts as stated in this letter, may any other candidate now file for mayor or city council prior to the November general election? "
In response to your initial question the adoption of the special city nonpartisan primary statute by ordinance pursuant to KRS 83A.050 is purely optional on the part of every city other than a city of the second class under the city manager form of government. However, assuming that the city has not elected to operate under this special statute, city officers in cities of the fourth class have the right to seek major party nomination in the May partisan primary with the exception of those fourth class cities operating under the city manager-commission form of government as provided in subsection (4) of KRS 118.105. Candidates for the May party primary must, of course, be qualified as members of the party and as provided in KRS 118.125 and KRS 116.055 and they must file a notification and declaration paper in the form prescribed by the State Board of Elections which requires the signature of two (2) qualified voters of the party. If, however, no more candidates file for party nomination than there are positions to be filled at the November election, their party nomination is automatic and there is no primary as provided in KRS 118.185.
We might point our that the charter provision to which you refer passed in 1893 is of no significance since it is superseded by the statutory law of the state governing municipalities as held in the case of Mullins v. Wilson, 282 Ky. 316, 138 S.W.2d 484 (1940). The court declared that Sections 156 and 166 of the Constitution together with the general laws enacted under these sections governing the classification, incorporation and government of cities, automatically repealed all specially enacted charters of those cities.
The fact that certain candidates for city offices may be nominated in the regular May partisan primary does not affect the right of other candidates to file independent petitions not later than fifty-five (55) days before the general election which would be not later than September 9, to have their names listed on the ballot in a nonpartisan manner as provided in KRS 118.215 (3). The form of the independent petition is also prescribed by the State Board and requires the names and addresses of a minimum of twenty (20) registered voters living within the city. See KRS 118.315.
For your information, we are enclosing a copy of a letter addressed to Dr. W. R. Murphy of Columbia relating in part to your question which does indicate that certain candidates did in fact file for party nomination at the May primary and were automatically nominated, however, the key to determining this question would be the manner in which they filed or, in other words, whether they filed a notification and declaration paper or simply an independent petition.