Request By:
Hon. Thomas E. McDonald, III
Suite 180 Legal Arts Building
200 South Seventh Street
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of November 23 in which you relate that you were recently elected District Judge in Jefferson County, and the question is raised as to how soon you must assume this office for the unexpired term. More specifically, your questions are as follows:
"When may I take office? If the response to the question immediately preceding is that I may take office immediately upon certification of the election, would there be any adverse consequences if I did not take office until the middle of December?"
The case of Jones v. Sizemore, 117 Ky. 810, 79 S.W. 229 (1903) declared that whoever is elected at a November election for an unexpired term will be entitled to take office immediately after he receives his certificate of election and executes the oath of office, or in other words qualifies. This case, however, did not deal with the question of the length of time the person has after receiving his certificate of election, to assume the office.
A later case styled Brown v. Rose, 233 Ky. 549, 26 S.W.2d 503 (1930) rather clearly indicates, however, that unless there is some good reason for his not assuming the office within 30 days, which the court believed was a reasonable time limit, the office would become vacant. The court referred to the 30-day requirement in KRS 61.010 governing appointments to public office. However, at the same time it said this statute would not apply to elected officials.
The Brown case involved the election of a school board member on November 19, 1929. He did not qualify until January 4, 1930 and the court ruled that this was too long a period and that he had, therefore, vacated his office. More specifically we quote the following excerpt from this case:
"The rule in cases such as this is, under the doctrine announced in the case of Jones v. Sizemore, that the officer elected to fill a vacancy must qualify within a reasonable time. As the facts are alleged in the petition and undenied, the question is one of law to be determined by the court. What is a reasonable time may vary with the circumstances, but a period of time from November the 9th to January the 4th following is not a reasonable time under the facts alleged in the petition. Thirty days was considered a reasonable time by the General Assembly when dealing with officers appointed for a full term. Under ordinary circumstances, when there are no intervening causes, it is thought that thirty days is a reasonable time within which a member of the school board elected or appointed to fill a vacancy shall qualify. But we will make no hard and fast rule about the matter. In this case sixty days or thereabouts was an unreasonable time, and appellee lost his right to qualify if the allegations of the petition are true."
Although as the court indicated it would make no hard and fast rule as to what constitutes a reasonable time, it rather clearly indicates that one elected to fill a vacancy should do so within 30 days following certification. This being the case, it would appear advisable that you not wait to take office on a date beyond this period of time. Whether this period of time would end prior or subsequent to the middle of December would depend upon when you receive your certificate of election from the Secretary of State.