Request By:
Honorable Christopher H. Hancock
District Judge
Forty-Ninth Judicial District
P.O. Box 366
Allen County Courthouse
Scottsville, Kentucky 42164
Opinion
Opinion By: Frederic J. Cowan, Attorney General; David H. Ashley, Assistant Attorney General
You have requested a formal legal opinion pursuant to KRS 15.025 with regard to a pending vacancy in the Forty-Ninth Judicial Circuit.
In your letter of December 18, 1988 you relate to us that the incumbent circuit judge has announced his retirement effective February 6, 1989. In your letter you raise the following questions.
"If more than two (2) candidates file for this vacancy on February 7, 1989, will there be a primary in this case? If only one (1) candidate files on February 7, 1989, will he be the only candidate whose name appears on the November ballot for the unexpired term? Or, since this vacancy occurs after the one hundred and twenty (120) day filing deadline, will there be no primary in any case, and any candidates who file sixty-eight (68) days before the November election will be on the ballot. Or put another way, if one (1) person files on February 7, 1989, will the Secretary of State declare that he is running unopposed in November, or will he be taking the apparent position of the Attorney General that the 120 day filing deadline applies to judicial vacancies, in spite of KRS 118A. 100, and allow anyone to file 68 days before the general election? "
In an informal opinion from Mr. Walter Herdman addressed to Secretary of State Bremer Ehrler, dated July 12, 1988, a copy of which is attached hereto, Mr. Herdman dealt specifically with the questions raised by your letter. 1988 House Bill 833, Section 1, established a 120 day filing deadline for primary elections for all candidates who file with the County Clerks or the Secretary of State. This bill amended KRS 118.165, 118.365, and 118A.060 to change the filing deadlines for candidates from 90 days to 120 days before the May primary. This change applies to candidates seeking party nomination, judicial nomination and candidates seeking to run as independents. KRS 118.115, 118.375 and 118A.100 provide a procedure for filling unexpired terms which is dependent upon whether the vacancy occurred more or less than 105 days before the primary election.
It was the opinion of this office, by virtue of Mr. Herdman's letter of July 12, 1988, that the 120 day deadline for filing established by the 1988 legislature will apply to candidates seeking unexpired terms under the provisions of KRS 118.115, 118.375 and 118A.100, thus automatically nullifying the 105 day deadline.
We have reviewed the statutes and case law upon which Mr. Herdman based his opinion, and discussed the opinion at some length with Mr. Herdman. We see no reason to change or modify this position, and thus adopt the position that the 120 day filing deadline was meant to uniformly apply to all filing deadlines, except those for municipal offices, and therefore by implication applies to candidates seeking unexpired terms under the provisions of KRS 118.115, 118.375 and 118A.100.
Thus, in specific response to the questions raised by your letter, the vacancy will occur effective February 7, 1989. There will be no primary in this case, and all candidates must file 68 days prior to the November election, which in this case is August 31, 1989.
You have further raised the question as to when a vacancy in office occurs. KRS 61.010 is the controlling statute. This statute, and the case law thereunder, requires, in effect, that all resignations must be tendered in writing to the person or body authorized to fill the vacancy and must be accepted by that office, office or body. See Hancock v. Queenan, Ky., 294 S.W.2d 92 (1956). In the case at hand the office of the Secretary of State received notice from James A. Bailey, Secretary, Judicial Nominating Commission, dated December 22, 1988 that a vacancy in the 49th Judicial Circuit will occur effective February 6, 1989. This being the case, the vacancy will not occur until the present judge retires, effective February 6, 1989. Thus petitions for nominations cannot be accepted by the Secretary of State until after February 6, 1989.
We trust the foregoing is responsive to your request.
July 12, 1988
Honorable Bremer EhrlerSecretary of StateFirst Floor, State CapitolFrankfort, Kentucky 40601
Dear Secretary Ehrler:
While this letter does not represent a formal legal opinion pursuant to KRS 15.025, we trust it will be of some assistance. Our response will be restricted to the applicable law based upon the facts you have presented.
In your letter of June 27, 1988, you relate the following facts and question:
"KRS 118.115, 118.375 and 118A.100 (see copies attached) provide a procedure for filling unexpired terms which is dependent upon whether the vacancy occurred more or less than one hundred and five (105) days before the primary election.
"1988 HB 833, Section 1, (see copy attached) establishes a one hundred and twenty (120) day before the primary deadline for candidates who file with the County Clerks or the Secretary of State.
"Our question relates to what happens if there is a vacancy in office between the 105 day and the 120 day deadlines. If a vacancy occurs 105 days before the primary, potential candidates for the position will have already missed the 120 days before the primary filing deadline. In your opinion, does the new 120 day filing deadline before the primary impliedly repeal the 105 day provision and, if so, do the deadlines in the three above cited statutes automatically become 120 day deadlines? "
The 1988 legislature amended KRS 118.165, 118.365, and 118A.060 to change the filing deadlines for candidates from 90 to 120 days before the May primary. This change applies to candidates seeking party nomination, judicial nomination and candidates seeking to run as independents.
Unfortunately, the legislature failed to amend KRS 118.115, 118.375 and 118A.100 governing candidates seeking offices under the above statutes for unexpired terms to comply with the 120 day deadline by leaving unchanged the requirement that when a vacancy occurs not less than 105 days before the primary, such candidates must in effect file before the primary deadline. As you know, these statutes do not mention the 90 day deadline. This creates a situation where on the one hand a vacancy could occur less than 120 days but more than 105 days but the candidates could not file and comply with the 120 day primary deadline. Obviously, the legislature did not intend for a situation to occur that would lead to an absurd conclusion. Reeves v. Fidelity & Columbia Trust Co., 293 Ky. 544, 169 S.W.2d 621 (1943). Also it is a well established principle in the construction of statutes that the court can delete words to prevent an absurd consequence or to resolve an ambiguity in a statute. Fidelity & Columbia Trust Co. v. Meeks, 294 Ky. 122, 171 S.W.2d 41 (1943). Words may be supplied, omitted, substituted or modified in order to effectuate legislative intent. Neutzel v. Ryans, 184 Ky. 292, 211 S.W. 852 (1919). Also courts may modify the language of statutes in order to make them consistent. Green v. Moore, 281 Ky. 305, 135 S.W.2d 682 (1940).
We also might mention that although repeal by implication is not favored by the courts, where relating statutes are in effect repugnant to each other or cannot be reconciled, the later statute controls. In this instance, the 1988 amendment changed the filing deadline from 90 to 120 days, thereby eliminating the 105, as well as the 90 day, deadlines. Head v. Commonwealth, 165 Ky. 603, 177 S.W. 731 (1915) and Commonwealth v. Schindler, Ky. 685 S.W.2d 544 (1985). See also KRS 446.250.
Thus, under the circumstances we believe that the 120 day deadline for filing established by the 1988 legislature will apply to candidates seeking unexpired terms under the provisions of KRS 118.115, 118.375 and 118A.100, which in turn will automatically nullify the 105 day deadline.
This 120 day deadline, however, creates a problem in itself where the vacancy occurs on or a few days before this deadline thus not giving potential candidates sufficient time to file. Normally, the time span would be a 15 day grace period, as is presently the case in the unexpired term statutes referred to. We do not believe, however, that we can go so far as to say that the legislature intended to also add a 15 day grace period to the 120 day deadline. Hopefully, this situation will not arise before the legislature is able to correct this problem.
Sincerely yours,
FREDERIC J. COWAN, ATTORNEY GENERAL;
WALTER C. HERDMAN, ASST. DEPUTY ATTORNEY GENERAL