Request By:
Mr. James T. Carey
Assistant County Attorney
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter dated August 5th in which you relate that Alderman Dr. Harold Howard resigned his office on August 2, 1982. The question you raise is whether or not this vacancy must be filled in the coming November election on November 2, 1982.
As you point out, Section 152 of the Constitution controls the filling of all vacancies in elected offices and requires that all vacancies be filled at the next regular election embracing the area in which the vacancies occur provided the vacancy occurs more than three months prior to the election and provided there is a regular election embracing the area in which the vacancy occurred. The computation of time statute last amended in 1970, coded as KRS 446.030, reads in part as follows:
"(1)(a) In computing any period of time prescribed or allowed by order of court, or by any applicable statute, the day of the act, event or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, a Sunday, a legal holiday, or a day on which the public office in which a document is required to be filed is actually and legally closed, in which event the period runs until the end of the next day which is not one of the days just mentioned."
The vacancy in question occurred on August 2, which must be excluded under the terms of the above referred statute in computing the three months period. Thus, August 3 would be the initial day that the three months period would begin to run, which would end at midnight, November 2 (election day). Consequently three months would not intervene as required by Section 152 and the vacancy could not be filled at the 1982 November election. OAG 72-625 (copy enclosed) to which you refer relates to a similar question and supports this conclusion. It also details the computation method which we will not reiterate here, involving the term "month." In addition and in support of our conclusion, we refer you to the case of Dorsett v. Burgher, Ky., 555 S.W.2d 579 (1977).
In response to your second question which becomes moot in view of the above conclusion, had the vacancy occurred before August 2 then the election would have had to have been held at the coming November election, since there is a regular qualifying election embracing Jefferson County, that for Supreme Court Justice for the 4th Supreme Court District. See KRS 21A.010 and 21A.020. See also Hancock v. Queenan, Ky., 274 S.W.2d 92 (1956) and Smith v. Ruth, 308 Ky. 60, 212 S.W.2d 532 (1948).