Request By:
Hon. Paul W. Richwalsky, Jr.
Commonwealth's Attorney
30th Judicial District
514 W. Liberty
Louisville, Kentucky 40202-2887
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of August 7 in which you initially refer to the vacancy created in the office of Commonwealth's Attorney on December 12, 1983 when the present Attorney General tendered his resignation and you were appointed by the Governor to fill the vacancy. As required by Section 152 of the Constitution, since the term of the office would not expire this year, the vacancy must be filled at the coming November election for the unexpired term. May primary nominations were made. However, there appears to be some confusion as to the precise date that the winner in November could take office; some believing that he could assume the office as soon as the results of the general election are certified, and others believing that he could not take office until January, 1985.
In the case of
Jones v. Sizemore, 117 Ky. 810, 79 S.W. 229 (1904), the court declared in effect that one elected to fill a vacancy was entitled to enter the office in place of an appointee immediately after his election and qualification. In this respect we refer to the Jones case and quote the following:
"The term of the office of sheriff is four years, no more and no less. The present term throughout the State began with the first Monday in January, 1902. The term had but one beginning, and will have but one ending, though there may be a dozen incumbents during the one term. The appellant was not appointed to serve during the remainder of the unexpired term of his predecessor, but only to fill the vacancy caused by the latter's death until an election could be held as provided by law to fill such vacancy for the remainder of the unexpired term, which election as thus provided could not take place until November of the year 1903. Therefore, upon the election and qualification of appellee, the vacancy ceased, and it became the duty of appellant to retire at once from the office in favor of appellee, who as entitled to begin the immediate performance of the duties thereof, without waiting until the first Monday in January following, as would have been the case if he had been elected for a full term of four years."
In the later case of
Brown v. Rose, 233 Ky. 549, 26 S.W.2d 503, (1930), the question was raised as to when the person elected to fill a vacancy was required to take office, and the court said that obviously he could not qualify until he receives his certificate of election. However, once he receives it he must qualify within a reasonable time.
Thus in answer to your question, the person elected to fill the vacancy of Commonwealth's Attorney this fall would be entitled to assume the office as soon as he receives his certificate of election and executes the oath of office. In other words, he is not required to wait until the first Monday in January, 1985 as pointed out in the Jones case.