Request By:
Mr. John T. Robertson
County Court Clerk
Court House, 511 S. Main Street
Hopkinsville, Kentucky 42240
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of July 30, in which you relate that a vacancy was created in the office of constable in the Eighth Magisterial District of Christian County when the duly elected constable at the November 1981 election resigned before serving any of his term. The office was then filled by appointment in early January 1982. In addition you relate by phone that there were two candidates of the same party that filed their nominating papers for the May 1982 primary to fill this vacancy; however, no primary was conducted to determine the party nominee on the assumption that the vacancy could not be filled in November. The question is now raised as to whether or not the vacancy is to be filled at the November election and whether the candidates in question can have their names placed on the November ballot.
To begin with, the vacancy in the office of constable in Christian County must be filled at the coming November 1982 election under the terms of Section 152 of the Constitution since there is a regular election embracing Christian County to be held at that time. The election in question is for Justice of the Supreme Court from the First Supreme Court District as required by KRS 21A.010 and 21A.020. This election of course embraces Christian County which is necessary under the terms of Section 152 of the Constitution in order for the vacancy to be filled. See
Hancock v. Queenan, 294 S.W.2d 92 (1956) and
Smith v. Ruth, 308 Ky. 60, 212 S.W.2d 532 (1948).
It is unfortunate that a primary election was not held so that one of the two candidates filing for nomination would have the opportunity to be the party nominee. Nevertheless, in view of a 1982 amendment to KRS 118.365, any person can now file as an independent for any office to be filled for a regular or unexpired term, not less than fifty-five days before the regular election. Heretofore, all independent candidates other than city and school board candidates were required to file fifty-five days before the primary election.
Thus, in view of this 1982 change, effective July 15, the two party candidates in question, irrespective of their party affiliation, and any other individual, may file an independent petition containing the names of a minimum of twenty petitioners for the office in question, provided they file their petition not less than the fifty-five day deadline, which is September 8. Whoever is elected at the November election for the unexpired term will be entitled to take office immediately after he receives his certification and qualifies.