Request By:
Mr. Albert T. Wood
Kenton County Clerk
Third and Court Streets
City/County Building
Covington, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to Patrick Hickey's letter of September 20 addressed to you in which he presented the question as to whether or not certain nominating papers filed by Mary Kay Padgett comply with the statutory requirements and in addition whether her name should be placed on the ballot for the office of city council, presumably to fill a vacancy. You have requested our response.
Mr. Hickey initially refered to the requirements of KRS 118.315 pertaining to independent petitions for state and local officers, but it appears that the correct statute pursuant to which Mrs. Padgett filed is KRS 83A.170 relating to special non-partisan city primaries, and we assume that the city elected to conduct its elections under this latter statute hereby eliminating the requirements of KRS 118.315.
KRS 83A.170 requires, of course, the names of 20 petitioners and their addresses be attached to the petition for nomination at the special primary election held in May. In addition, it provides that any voter who signs more than one petition of an applicant, the name of the voter shall not be counted as valid on any petition. This provision incidentally has been amended by the 1982 legislature effective July 15, 1982 to comply with the requirements of KRS 118.316 to the effect that where there are more nominees for any one office to be filled, the petitioner shall be counted for the candidate whose petition is first filed. However, this is of no consequence in response to his question which relates to the following facts:
"A close inspection of the petition of Mary K. Padgett, filed March 31, 1982 shows eight (8) signatures that appear on petitions filed earlier by Messrs. Martin Netner or David Sogar. Therefore, it would appear that Mrs. Padgett's petition contains only eighteen (18) valid signatures. "
The fact that Mrs. Padgett's petition contained only 18 valid signatures following the deduction of those who had previously signed an opposing candidate's petition would mean that her petition did not qualify under the terms of KRS 83A.170 requiring a minimum of 20 petitioners. However, it is apparent that her petition was not challenged either by an opponent or a qualified voter in court pursuant to KRS 118.176 before the primary. Also, if the clerk had been requested before the primary to check the signatures against the registration record of signers and had found the deficiency referred to, he should have rejected the petition. The fact that Mrs. Padgett's filing papers were not challenged in circuit court or rejected, and she was as a consequence nominated either at the special city primary required under the terms of KRS 83A.170 or automatically where there were less than two applicants for each office pursuant to subsections 5 and 9 of such statute, her filing papers cannot be challenged after the primary or, in other words, after her nomination and before the November election. See
Fletcher v. Wilson, Ky., 495 S.W.2d 787 (1973).
The Fletcher case held that neither a voter nor an opposing candidate can bring an independent suit either under the declaratory judgment act or under the provisions of KRS 118.176 after the primary, to question the eligibility of a candidate for office or the sufficiency of his nominating papers. See also
Little v. Bogie, 300 Ky. 668, 190 S.W.2d 26 (1945) and
Audry v. Oaks, 300 Ky. 669, 190 S.W.2d 27 (1945).
Under the circumstances, we are of the opinion that since Mary K. Padgett was presumably duly nominated at the special city primary held in May, her name must appear on the November ballot.