Request By:
Mr. John Paul Blair
Pike County Court Clerk
Pikeville, Kentucky 41501
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of April 29, in which you state that a vacancy was created in the office of Justice of the Peace from Magisterial District No. 2 by virtue of the death of the duly elected magistrate on or about December 2, 1981. His wife was appointed by the Governor to fill that vacancy, and the question is raised as to whether or not there must be an election this year to fill said vacancy for the unexpired term, particularly due to the fact that three people have already filed their notification and declaration papers for the coming May primary for this particular office.
In connection with the above referred to vacancy, you relate that the magisterial district in question comprises fifteen precincts and there will be a regular school board race this Fall in eleven of the fifteen precincts. However, this indicates there are four precincts in which there will be no school board election.
All vacancies in elective offices are controlled by Section 152 of the Constitution which requires an election to fill such vacancies at the next regular election embracing the area in which it 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).
It is obvious from the related facts that the school board race to which you refer will not embrace the entire Magisterial District No. 2 which would be required in order to qualify as a regular election embracing the magisterial district under the terms of Section 152 of the Constitution and the holdings in the referred to cases. There are no other regular state or local elections embracing Pike County though there are four Supreme Court district races in other parts of the state. At the same time federal elections, such as those this November for members of Congress, do not qualify as state elections under the terms of Section 152 of the Constitution and as also held in the above cited cases.
Under the circumstances it is apparent that the vacancy in Magisterial District No. 2 of Pike County cannot be filled at the coming November 1982 regular election, and the Governor's appointee to fill this vacancy will serve until the 1983 general election, at which time an election for statewide officers must be held, which of course qualifies as an election at which this particular vacancy will have to be filled for the unexpired term. Thus, any person interested in being elected to fill this vacancy at the 1983 general election must file for the May primary of that year if they desire to be nominated as party candidates. If they desire to run as independents they must file their petitions fifty-five days before the general election. The filing deadline has been changed pursuant to a 1982 amendment to KRS 118.365 (H.B. 368) effective July 15, 1982. Whoever is elected at the following November 1983 election will be entitled to take office immediately after the election following the receipt of his certificate of election and is otherwise qualified for office. Jones v. Sizemore, 117 Ky. 810, 79 S.W. 229 (1904).
Thus, in our opinion, the notification and declaration papers that have been filed by the three candidates for the 1982 primary are in effect a nullity and their names should not be listed on the coming May primary ballot for nomination to the office in question.