Request By:
Mr. Sam Maraman
Mr. L. E. Mattingly
L.J. Councilmen Elect
Lebanon Junction, Ky. 40150
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of December 14 in which you relate that three members of the city council of the city of Lebanon Junction, a city of the fifth class, were nominated in the May democratic party. These three nominees were listed on the general election ballot under the democratic emblem and were elected along with three other candidates who had filed as independents.
With respect to the nomination of and election of the three party candidates, you are of the opinion that a fifth class city such as Lebanon Junction cannot nominate candidates by utilizing the major party nominating procedure in view of KRS 118.105. Under the circumstances you desire to know whether or not the election of the three democratic candidates was valid.
It is true that KRS 118.105 prohibits members of the legislative bodies of cities of the fifth and sixth classes from participating in the major party primaries. In other words, all candidates for membership on the legislative body must file as independents for the November election pursuant to KRS 118.315, or if the city elects to operate under the nonpartisan city primary act (KRS 83A.170) pursuant to an appropriate ordinance, all candidates must be nominated in a special city primary in order to be elected in November under the terms of KRS 83A.170. We assume, however, from the facts presented that the city did not adopt KRS 83A.170.
However, in spite of the fact that the three candidates elected were nominated in the major party primary held in May, which as we pointed out above was unauthorized, the fact that no action was filed in circuit court to disqualify them from having their names on the May primary ballot pursuant to KRS 118.176, means that their qualifications to be on the November ballot and to be elected to office cannot thereafter be questioned. In the case of Fletcher v. Wilson, Ky. 495 S.W.2d 787 (1973), the court declared that neither a voter nor a candidate of another political party can bring an independent suit under the Declaratory Judgment Act or otherwise after the primary to question the eligibility for office or the suifficiency of the declaration papers of a candidate who has been nominated in the primary.
Under the circumstances and in response to your question based on the facts presented, we believe that the six candidates elected at the November election, that is the three independent candidates and the three party nominees, were legally elected and entitled to hold office.