Request By:
Honorable Lawrence E. Higgins
Circuit Judge
Jefferson Circuit Court
Thirteenth Division
Hall of Justice
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of March 22, 1978 in which you relate that on February 9, 1978 you were appointed circuit judge of the Jefferson Circuit Court, Division Thirteen, by the Governor to fill the vacancy created by the resignation of Judge Thomas A. Ballantine, Jr. The question is raised as to whether a candidate for the unexpired term must run in November 1978 or November 1979.
Our response to your question would be to the effect that the vacancy can only be filled at the November 1979 election. You refer particulary to KRS 118A.100(1) which reads as follows:
"Candidates for an unexpired term of a judicial office to be filled at a regular election shall be nominated at the primary next preceding the regular election in the manner prescribed in KRS 118A.060 if the vacancy occurs not less than seventy (70) days before the primary. If the vacancy occurs on or after the seventieth day before the primary, the election to fill the unexpired term shall be held in accordance with the procedures described in this section and Section 152 of the Constitution of Kentucky."
There is apparently some contention that the vacancy must be filled at the coming November election 1978 presumably in view of the language found in the second sentence in the above quoted statute to the effect that Section 152 of the Constitution would appear to apply only to those vacancies occurring less than seventy days before the primary since reference to Section 152 of the Constitution is found only in the second sentence. We admit that the statute is proorly worded, however, regardless of what the statute says, Section 152 would apply to all vacancies in elective offices except as otherwise provided in the Constitution such as school elections. [Const. 155]. Referring to the case of
Scott v. Singleton, 171 Ky. 117, 188 S.W. 302 (1916) the Court said in reference to Section 152 of the Constitution:
"This section of the Constitution is mandatory, and except as otherwise provided in the Constitution, provides how, by whom and for how long vacancies in all elective offices must be filled. So, unless otherwise provided in the Constitution, the vacancies involved in this case were filled by appointment only until the regular annual election this fall when the unexpired term must be filled by election. "
See also
Shields v. Wilkins, 449 S.W.2d 220 (1969).
As you know Section 152 of the Constitution requires all vacancies to be filled at the next regular election embracing the area in which the vacancy has occurred. See
Smith v. Ruth, 308 Ky. 60, 212 S.W.2d 532 (1948) and
Brumleve v. Ruth, 302 Ky. 513, 195 S.W.2d 777 (1946) and
Yates v. McDonald, 96 S.W. 865 (1894) cited by you. We also might cite two additional cases that hold to the same position with respect to the filling of vacancies in the office of circuit judge, viz., Eversole v. Brown, 21 KLR 925, 53 S.W. 527 (1899) and
Ward v. Siler, 272 Ky. 424, 114 S.W.2d 516 (1938).
Under the terms of Section 152 of the Constitution and the previously cited cases the only regular election to be held in Jefferson County in 1978 are school board elections which, however, do not embarce the entire county and as a consequence the judicial circuit. Federal elections such as those for United States Senators and Members of Congress to be held this November do not qualify under the terms of Section 152 as held in some of the above cited cases. See also OAG 78-16, copy attached.
Under the circumstances therefore the vacancy in question cannot be filled this November 1978 but must be filled at the November 1979 election which is an election for state-wide officers embracing the entire state.