Request By:
Hon. James Hite Hays
Shelby County Attorney
Courthouse
Shelbyville, Kentucky 40065
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of June 5 in which you present the following facts and questions:
"(1) When an individual is appointed to replace a Sheriff who died in office, and subsequently wins the election to serve out the unexpired term, when would he in fact take office? Our Sheriff died in office and one of his deputies was appointed and won last month's primary race to represent the Democratic party. Since there is no Republican opponent he is assured of being elected in November and I am interested if he takes office immediately after election or sometime thereafter.
"(2) Our County Judge appointed a person to the elected office of constable after a resignation occurred in that office. According to the law anyone desiring to serve out the unexpired term of the original constable must run for that position in the May 1984 primary and the November general election. No one filed to run for that position for the primary and we are assuming that no one will qualify subsequently for the general election in November of 1984. With regard to the constable that was appointed by the Judge when does his term expire and after that point may the Judge reappoint someone to that position or could it be unfilled until the next primary election for the constable's position?"
In response to your initial question, where a person is elected to fill a vacancy for an unexpired term, such person is entitled to take office immediately after his election or as soon thereafter as he receives his certificate of election, in this case from the county board of elections, and qualifies. He would then hold office for the remainder of the unexpired term. See Section 152 of the Constitution and the case of
Jones v. Sizemore, 117 Ky. 810, 79 S.W. 229 (1904).
In response to your second question, it is true that where the vacancy occurred in the office of constable more than 70 days prior to the primary, any person who desires to be a major party nominee must run in the May primary election in order to have his name on the November ballot as the nominee. See KRS 118.115. On the other hand, any person regardless of party affiliation may file as an independent for the office of constable not later than 70 days before the general election this year as authorized by KRS 118.365(3) and as amended by Senate Bill 56, Section 20. However, beginning January 1, 1985 the filing deadline will be changed pursuant to Senate Bill 56, Section 22, by requiring the filing of independent petitions with certain exceptions, 90 days before the May primary. See particularly Subsection 6.
Thus, there could be opposition in both the sheriff's and constable's races this November if someone files as an independent. We might add that the 70-day filing deadline for independents for 1984 would be not later than August 28, 1984.
In any event and regardless of whether or not anyone files as an independent for constable, Section 152 of the Constitution would require the office to be placed on the November ballot for "write-in" purposes, since the office must be filled by an election. If no one is elected, then a vacancy occurs to be filled by the county judge/executive for the remainder of the term ending in January 1986.