Request By:
Mr. Stanley Hopkins
Hickman County Judge/Executive
Courthouse
Clinton, Kentucky 42031
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your county attorney has indicated to you that it is now apparent that he will be suspended from the practice of law no more than ninety (90) days. The assistant county attorney is his law partner who has just graduated from law school and started practice in October of 1978. You raise various questions in connection with his suspension from law practice.
Question No. 1:
"Does this cause the present county attorney to vacate his office for the remainder of his term or just the ninety day period?"
Implicit in the qualifications of the county attorney is the requirement that he must be duly licensed to practice law during the entire period of his term. See § 100, Kentucky Constitution. If he were to be suspended from law practice for 90 days, or any other substantial period, his suspension would immediately disqualify him as the county attorney, and he would have to either resign or subject himself to an ouster action under KRS 415.040. See
Kash v. Day, Ky., 239 S.W.2d 959 (1951), holding that an office is vacant in contemplation of law whenever it is not held by one who is legally qualified to do so, and who has a right to continue therein. Thus the disqualification would extend through the 90 day suspension period.
In this context we believe 90 days is a substantial period of effective disqualification. It seems altogether logical and equitable that a disqualification period of one week, for example, might be held by the courts to not be a substantial period resulting in effective disqualification. But that would be for the courts to determine if the issue is properly raised. Here 90 days is approximately one-fourth of one year. Thus the underlying rule requiring a continuity of eligibility of office would apply.
Question No. 2:
"If the office is vacated, does the county judge alone appoint a person as county attorney? "
Where the county attorney resigns or is ousted under the major assumption above, the county judge/executive fills the actual vacancy pursuant to KRS 63.220(1).
Question No. 3:
"What responsibilities will the appointed county attorney have in the district court; or whose responsibility will it be to appoint the prosecutor? "
Under KRS 15.725(2), whoever is county attorney must attend the district court in his county and prosecute all violations of criminal and penal laws within the jurisdiction of that court. So the elected county attorney or a person appointed to fill that office is the prosecutor of that court.
Question No. 4:
"What qualifications must the appointed county attorney have? Should I appoint the assistant county attorney even though he has not practiced for two years? Should I appoint an attorney who meets the practice requirements?
He must have the same qualifications as the elected county attorney. Thus he must be 24 years of age, a citizen of Kentucky, and who must have resided in Kentucky for two years and resided in his county for one year next preceding his appointment. He must also have been a licensed practicing attorney for two years. He must be a licensed practicing attorney in Kentucky for as long as he holds the office of county attorney. See § 100, Kentucky Constitution. He may engage in private law practice. KRS 15.765(4).
Question No. 5:
"If the vacancy occurs within the next 30 days and an appointment is made, will the appointment be made for a given period or will a special election be necessary?"
An appointment to fill a vacancy in that office is subject to the applicable provisions of § 152, Kentucky Constitution. Since the regular county attorney term will end December 31, 1981, the office would be filled by appointment until the election of November, 1979, at which election the vacancy shall be filled by election for the remainder of the term.
Question No. 6:
"If a special election is necessary, when would it be held - at the next primary election or just at the general election? Also, what notice must be given or what duties would the county court clerk be required to perform with regard to this special election? "
We have explained the election requirements under § 152, Constitution, above. Under KRS 118.115 candidates for an unexpired term to be filled at a regular election must be nominated at the primary next preceding the regular election, if the vacancy occurred not less than 70 days before the primary. If the vacancy occurred less than 70 days before the primary, the nomination shall be made in a manner determined by the governing authority [county executive committee] of the political party concerned. In the preparation of the ballots, the clerk must see to it that candidates for full terms are grouped together, and candidates for unexpired terms are grouped together, under appropriate headings, such that the voters may easily distinguish the candidates for full terms from the candidates for unexpired terms. Thus the filling of such a vacancy does not involve a special election. Cf. KRS 118.710 to 118.770. It is integrated with the normal primary, where applicable, and regular election machinery.
After the 90 days suspension period has elapsed, the present or incumbent county attorney would be eligible to run for the unexpired term, since the constitution and statutes do not disqualify him from holding office for the remainder of his term.