Request By:
Mr. Vic Hellard, Jr.
Director
Legislative Research Commission
Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General
This is in response to your letter of November 6, in which you raise the following question:
"When may a special election be held to fill the vacancy in the term of office to which Speaker Ektnon was elected on November 3, 1981, such term to commence on January 1, 1982?"
The death of Representative Bill Kenton [representing the 75th Legislative District] following his reelection at the November 3rd General Election created an immediate vacancy in his present term of office that ends on January 1, 1982. On January 1, the beginning of the new term to which he was elected, a second vacancy will be created which must be filled at a special election pursuant to KRS 118.730 to 118.770.
Since it obviously would be impractical for the Governor to call a special election for the short period remaining in Mr. Kenton's present term ending January 1, the basic question concerns the proper procedure for filling the vacancy affecting the new term. Section 30 of the Constitution provides that regular terms for members of the Legislature begin on January 1 following their election. Section 36 of the Constitution provides that the Legislature shall convene on the first Tuesday after the first Monday in January, which would be January 5. As a consequence, the vacancy created on January 1, 1982, will occur before the Legislature convenes, which would require the Governor rather than the Speaker of the House to call said election by issuing a writ, pursuant to KRS 118.730.
As the Court pointed out in the case of Furste v. Grey, 240 Ky. 604, the framers of the Constitution had in mind that vacancies in the General Assembly shall not continue but should be filled immediately in the manner provided by the Legislature.
Thus, because of the urgency for filling the vacancy in question so that the residents of the 75th Legislative District will be properly represented at the earliest possible time following the beginning of the Session on January 5, it is suggested that the Writ of Election be issued on January 1st and hand delivered rather than mailed, to the sheriff. Hand delivery has been held to be legally proper in OAG 79-12, copy enclosed.