Request By:
Honorable J. R. Gray
State Representative
Route 3
Benton, Kentucky 42025
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of September 6 concerning the filling of a vacancy in the McCracken District Court by appointment of the Governor from a list of nominees submitted by the Judicial Nominating Commission. You enclose a copy of a newspaper article from the August 7, 1983 edition of the Paducah Sun detailing certain facts relating to the nominating procedure and raise the following question:
"An opinion is requested as to whether the Governor is following section 118(1) of the Constitution if he appoints a judge from a list of less than three names submitted by a judicial nominating commission."
Judicial vacancies are initially filled by appointment in accordance with section 118 of the Constitution subject to an election under section 152 of the Constitution. Under section 118, such a vacancy is filled by appointment of the Governor from a list of three qualified names presented to him by the Judicial Nominating Commission established under the rules of the Supreme Court pursuant to the terms of this section of the Constitution. In accordance with SCR 6.040 the Commission must meet to select three nominees to be presented to the Governor in writing by the Chief Justice. The selection of nominees is not limited to those who have applied by submitting a questionnaire under Rule 6.020 but may include any qualified individual selected by the Commission.
The facts at our disposal are ascertained solely from the newspaper clipping submitted and indicate that the Commission initially submitted to the Governor a list of three nominees on June 22. However, one of the nominees apparently indicated that he was not interested though it is not clear whether the individual submitted a questionnaire agreeing to accept the position if selected in accordance with Rule 6.020, or was simply a nominee of the Commission. Then, in response to a request from the Governor's Office for an additional name, the Chief Justice by letter stated that the Commission was unable to submit the name of a third qualified candidate and requested that the vacancy be filled from the two remaining names, presumably following a second meeting of the Commission called for the purpose of attempting to find a third viable candidate.
Assuming the facts detailed are essentially correct, we believe that the provisions of the Constitution and the Supreme Court rule requiring the submission of three nominees were in fact complied with by the initial submission of the three nominees on June 22. However, even though only two viable candidates were actually nominated, we nevertheless believe there was substantial compliance with the Constitution and the Supreme Court rule where the Chief Justice declared that the Commission could not find a third qualified candidate. As a consequence, the Governor will have to select one of the two nominees. To hold otherwise would mean that irrespective of the fact that the Commission, after due deliberation, failed to find an additional candidate that it believed to be qualified to fill the vacancy, it would benvertheless be required to submit the name of an individual who it did not consider qualified in order to meet the requirement for three nominees. In this respect we wish to point out that the courts have consistently declared that a constitutional provision should be given a practical interpretation in carrying out its purpose. It is concerned with substance and not form and the framers did not intend to forbid a common sense application to its provision. See