Request By:
Mr. Squire Baker
Clerk, Clay County Court
Manchester, Kentucky 40962
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 4 in which you raise a question concerning the eligibility of a candidate to run for the office of justice of the peace of Magisterial District No. 1 where said candidate changed his voter registration from Magisterial District No. 2 to that of No. 1 on March 1, 1977.
In order to be qualified to hold the office of magistrate, Section 100 of the Constitution requires the individual to have resided within the magisterial district one year next preceding the date of his election, which in this case would be November 8, 1977.
It is obvious that if the candidate in question changed his legal residence as well as his voting registration from Magisterial District No. 2 to District No. 1 as of March 1, 1977, he could not possess the one year qualification for holding said office by the November 8 election.
On the other hand, it may be possible for the candidate in question to prove that he had legally resided in District No. 1 for the qualifying period but had not changed his registration until March 1. As you know legal residence is based on intention and factual evidence. See
Nunn v. Hamilton, 233 Ky. 662, 26 S.W. 516 (1930). However, because of the possibility of many factors being involved other than those enumerated, we cannot say definitely as to whether or not the candidate in question is qualified. This is a matter that only the courts can decide.
In any event, the clerk cannot go behind the candidate's papers to determine his qualifications and, if such papers are in order, he must accept them and it is up to an opposing candidate or a qualified voter to bring an action to disqualify the candidate pursuant to KRS 118.176.