Request By:
Mr. Ray Stoess
P.O. Box 57
Gilbertsville, Kentucky 42044
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Kentucky Sheriff's Association is interested in an amendment to the Kentucky Constitution which would permit sheriffs to succeed themselves. Section 99 of the Kentucky Constitution now prohibits a sheriff from succeeding himself in that office or acting as deputy in the term immediately following his term.
The association is working on such a proposed amendment to be considered by the General Assembly, which proposed amendment, if voted affirmatively by three-fifths of all members of both houses, would be placed on the ballot in 1981 for the voters of the state, pursuant to § 256 of the Kentucky Constitution.
The present four year term of the sheriffs in Kentucky will end in 1981. The new term will begin in January, 1982.
Your specific question: How would such a proposed constitutional amendment eliminating the prohibition against succession in office as sheriff and against serving as a deputy in the succeeding term affect the incumbent sheriffs whose terms end in 1981?
A principle of statutory and constitutional construction is that retroactive effect or retroactive application of the act or constitutional section will not be given or made unless the intent that it should be is clearly expressed or necessarily implied. KRS 446.080(3);
Taylor v. Asher, Ky., 317 S.W.2d 895 (1958) 897; and
Durrett v. Davidson, 122 Ky. 851, 93 S.W. 25 (1906) 27.
Apart from provisions relating to ex post facto laws, bills of attainder, and legislation impairing the obligation of contracts, we find no express prohibition of retrospective legislation in the Kentucky or United States Constitutions. See 16 Am.Jur.2d, Constitutional Law, §§ 414 and 415, p.p. 754-756. Also see Ibid., § 48, p.p. 218-219.
Of course, the same amendment cannot be submitted under § 256 of the Constitution within five years after submission.
While theoretically the amendment could apply to incumbents if so expressly stated, it could not be so written to practically apply to present incumbents, as to running for sheriff, because of the peculiar time table under § 256 of the Kentucky Constitution. You see that even if the legislature in the 1980 regular session passes the issue by the required three-fifths vote in both houses, it would have to go on the November general election ballot of 1981. Thus the outcome of the amendment would not be known until after the certification of the November election vote of 1981. In the meantime, any incumbent running for sheriff in the primary and general election of 1981 would in the interim be running illegally and unconstitutionally. We do not believe the courts would uphold the incumbents' running for the office of sheriff in 1981 with the view that if the voters in 1981 vote in the amendment, the prior constitutional disqualification would be removed. That view breaks down pragmatically, since if the voters turn the amendment down, then every incumbent sheriff who gets nominated in the primary and who wins the November election in 1981 could not serve as sheriff in 1982. That could mean a vast pattern of vacancies in the office of sheriff throughout the state in 1982. The bottom line here is simply that at present, § 99 of the Constitution prohibits an incumbent sheriff from running for that office for the succeeding term.
Of course, if the amendment were approved by the voters in 1981, then in 1982 the incumbent sheriffs could become sheriffs' deputies, just by the prospective application of the amendment. But the deputy is an appointive office. See KRS 118.415 and § 256, Kentucky Constitution.