Request By:
Mr. Al Bennett, Co-Chairman
Interim Joint Committee on
Elections and Constitutional
Amendments
Legislative Research Commission
Capital Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of October 15, in which you attach a copy of Resolution No. 63, Series 1978, enacted by the Jefferson County Fiscal Court creating the Jefferson County Honest Election Committee. Your question is as follows:
"Does the Honest Election Committee have legal standing, by authority of Resolution No. 63, Series 1978, or otherwise, to mail such a Code to Commonwealth's Attorney candidates, to judicial candidates, to candidates for the General Assembly, or to candidates for any office other than those 'in the government of the County of Jefferson or the municipalities therein contained,' (SECTION 7 (B)) with a statement of the lack of response to be published in the newspaper?"
Resolution No. 63, as you have mentioned, creates a Louisville-Jefferson County Honest Election Committee. This committee is composed of members of both parties together with representatives from other groups presumably interested in honest elections. Section 6 of the resolution apportions the membership into subcommittees for the purpose of monitoring speeches made by the various candidates for county and municipal offices; examining campaign literature issued by the candidates or individuals on their behalf; observing the conduct of the elections at the various polling places, and to make reports to the Jefferson County Board of Elections and the local major political parties regarding any violation of the election laws so observed. Section 7 defines "elections" to include both city and county, primary and general, as well as public questions conducted within Jefferson County. Section 8 provides that in the event the committee finds a candidate is engaged in unfair campaign tactics as enunciated, it shall take whatever steps that are necessary to inform the voting public of their findings and determination. However, before such information is made public, the committee is required to inform the candidate and provide him a hearing, following which the committee shall make a determination as to whether a public disclosure shall be made. Section 9 provides that each candidate shall be requested to sign a Code of Fair Campaign Practices made a part of the resolution, and further provides that the public shall be advised before the election, presumably by publication, of the names of those candidates who have signed and those who have not.
In response to your question, we believe that the ordinance is invalid for a number of reasons, the foremost being the lack of statutory authority on the part of the Jefferson County Fiscal Court to legislate in the field of election regulation. As you will remember, KRS 67.083, enacted in 1972, giving to the fiscal court extensive home rule power, was held to be unconstitutional in the case of Fiscal
Court, Etc. v. City of Louisville, Ky., 559 S.W.2d 478 (1977). The Court in this case declared, in effect, that the General Assembly must grant governmental powers to fiscal courts "with the precision of a rifle shot and not with the casualness of a shotgun blast." The Court emphatically stated that the power as exercised by the fiscal court must be expressly delegated to it by statute. More specifically, the Court said:
"Tradition establishes that county government in Kentucky is based on the premise that all power exercised by the fiscal court must be expressly delegated to it by statute."
Following the Court's decision in the Fiscal Court v. Jefferson County case, supra, the legislature amended KRS 67.083 to specifically designate those areas of government in which the fiscal court had jurisdiction to enact legislation. Nowhere in this statute do we find any authority for the county to legislate in the field of elections. Therefore, in our opinion, no such authority exists.
There is the additional objection to such legislation based on the premise that the legislature, pursuant to constitutional §§ 145 through 155 governing the field of election law, has enacted through appropriate legislation the laws governing elections, found basically in Chapters 116 through 121 of the Kentucky Revised Statutes. In other words, the legislature, pursuant to constitutional directives, has preempted the field of election law regulation and control, and no county, or city, for that matter, can enact legislation in this area regardless of the fact that such legislation might in some respects serve a valuable purpose. In this regard we might also call your attention to KRS 67.083(6) which provides the following:
" If a county is authorized to regulate an area which the state also regulates, the county government may regulate the area only by enacting ordinances which are consistent with state law or administrative regulation. " (Emphasis added.)
In conjunction with this point we also wish to cite McQuillin, Municipal Corporations, Vol. 5, § 15.21, dealing of course with municipal corporation law, which would equally apply to the county government wherein it is stated:
". . . Nor, under a general grant of power, can a municipal corporation adopt ordinances which infringe the spirit, or are repugnant to the policy, of the state as declared in its legislation. It follows that if the state has expressed through litigation a public policy with reference to a subject, a municipality cannot ordain an effect contrary to or in qualification of the public policy so established, unless there is a specific, positive, lawful grant of power by the state to the municipality to so ordain. "
Therefore, for the reasons stated above, we are of the opinion that Resolution No. 63 enacted by the Jefferson County Fiscal Court is invalid. However, our opinion is not meant to reflect adversely on the goals of such a committee. Trying to insure honest elections is certainly a worthy goal, and a "nongovernment connected" committee could carry on work in this area.