Request By:
Mr. Charlie Wright
Clerk, Letcher County
Whitesburg, Kentucky 41858
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of February 18 in which you raise the following question:
"I have a man who has filed for District Judge who is not a lawyer. Please advise me as to whether he can be a legal candidate."
In order for a candidate for district judge to be qualified to hold the office, he must be licensed to practice law in the courts of the Commonwealth as required by § 122 of the Kentucky Constitution. This section further provides with respect to district judges the following:
". . . No district judge shall serve who has not been a licensed attorney for at least two years."
Under the circumstances and unless the candidate for district judge will possess the referred to qualifications at the time he enters office, he would not be qualified to serve as such or be a qualified candidate for the office. However, you as clerk must accept filing papers if they are correct and regular on their face and provided that such papers can be filed with you by law, as you cannot go behind them and refuse to accept them on the grounds the candidate will not be qualified to hold the office. See
Wilkins v. Duffy, 114 Ky. 111, 70 S.W. 668 (1902), and
Back v. Keith, Ky., 324 S.W.2d 393 (1959).
Of course, any opposing candidate or qualified voter entitled to vote for the candidate can question his qualifications before the judicial primary pursuant to KRS 118.176.
All judicial candidates, however, must file their papers with the Secretary of State pursuant to KRS 118A.060 (2) and therefore cannot legally file with the county clerk. Hence, the filing by the candidate in question is illegal and void insofar as you are concerned and you should so inform him.