Request By:
Mr. W. E. Marcrum, Clerk
Allen County Circuit Court
Scottsville, Kentucky 42164
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of July 18 in which you raise the following question:
"Please advise if Section 129 of the Kentucky Constitution and/or the changes made by the passing of the Judicial Amendment would vacate the office of Circuit Judge if he removes himself to an adjacent county in Kentucky, either temporarily or permanently, while being available for all his duties and responsibilities."
Section 129 of the Kentucky Constitution was repealed by the Judicial Amendment, effective January 1, 1976. Under the Judicial Amendment all judges, including circuit judges, are subject to removal for cause under Section 121 of the Constitution. Section 122 of the Constitution lists the qualifications required of judges which includes the requirement that they reside within the district from which they are elected. This, of course, means continued residence within the district during their term of office. Thus, if a circuit judge moves his residence [meaning legal residence] out of his district during his term, we believe he would be subject to removal for cause under Section 121 of the Constitution.
The problem is of course determining the officer's legal residence. For example, he may move temporarily out of the district with the intention of returning and retain his legal residence. On the other hand, the place where the family of a married man resides is generally considered his legal residence. Legal residence is, of course, based on fact and intention and we are enclosing a copy of OAG 77-182 setting forth statutory and case law covering this subject. We are also enclosing a copy of OAG 77-387 dealing with the residential requirements of a district judge and his possible removal for failure to comply with said requirements.