Request By:
Honorable Drexell R. Davis
Secretary of State
State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter dated September 18, 1984 in which you present the following facts and question:
"On August 28, 1984, (the filing deadline for candidates for the November 6, 1984 Regular Election) , Earl F. Ashcraft of Irvine, Kentucky, presented his "Petition for Election" to this office as a candidate for District Judge (unexpired term) of the Twenty Third (23rd) Judicial District. The Petition for Election was conditionally accepted, but not filed, pending determination of whether there was, in fact, a vacancy in the office, and, if so, when the vacancy became effective.
"Section 152 of the Kentucky Constitution states: 'If the unexpired term will not end at the next succeeding annual election . . . and if three months intervene before said succeeding annual election . . . the office shall be filled by appointment until said election, and then said vacancy shall be filled by election for the remainder of the term.' Therefore, it is our understanding that if the vacancy occurred ninety (90) or more days before the November 6 regular election, there will not be an election for District Judge this year. August 8, 1984, marks the crucial '90 days' before the election.
"This situation hinges on the removal of Billy L. Wilson from office by the Judicial Retirement and Removal Commission. Since the Secretary of State's Office had no first hand knowledge of the circumstances surrounding the removal of Mr. Wilson, we contacted Laural C. Stammel, Secretary of the Judicial Nominating Commission to inquire as to when the office became vacant. Mrs. Stammel responded that the office became vacant on the close of business, August 10, 1984, when the occupant was removed from the state payroll.
"Accordingly, the Secretary of State notified Mr. Ashcraft that since the office became vacant on August 10, 1984, 88 days before the general election, the office would not be filled by election this year.
"Mr. Ashcraft has now contended to the Secretary of State that 'On August 1, 1984, the office of Judge of the District Court of the 23rd Judicial District became vacant when Judge Billy L. Wilson lost his appeal in the Supreme Court of Kentucky and was removed from office.' The Supreme Court denied Judge Wilson's petition for rehearing on August 1, 1984. August 1, 1984 represents ninety seven (97) days before the regular election.
"Our check of Supreme Court records further shows that on August 3, 1984, Judge Wilson moved to stay the judgment for ninety (90) days. The Supreme Court denied Judge Wilson's motion for a stay on August 8, 1984. August 8, 1984, represents ninety (90) days before the election.
"Our question is as follows: 'What is the effective date of the vacancy in office for Judge of the Twenty Third (23rd) Judicial District, and should Mr. Earl F. Ashcraft's Petition for Election be filed, and the Secretary of State's Certification of Candidates to the County Clerks of Estill, Lee and Owsley Counties be amended to provide for the election. '
"Supporting documents which reflect the above described filings and court actions are attached."
Based on the above related facts together with the enclosed papers, it is apparent that the Judicial Removal and Retirement Commission removed Judge Wilson from office following a Commission hearing under Rule 4.220 from which an appeal was taken to the Supreme Court. The Supreme Court sustained Judge Wilson's removal and denied his petition for rehearing pursuant to an order dated August 1, 1984. At the same time a memorandum was sent to West Publishing releasing the Court's decision for publication also dated August 1, 1984. On August 3 Judge Wilson filed a motion to stay the execution of the judgment pending application to the Supreme Court which was denied by an order dated August 8.
Based on the above related facts, we believe the office in question actually became vacant on August 1, the date the Supreme Court denied Judge Wilson's petition for rehearing and released the Court's decision for publication.
Referring to SCR 4.290(5), it is noted that the Court has the power to affirm, modify or set aside the order of the Commission. CR 76.30 relating to the effective date of the Court's opinion provides under subsection (2)(a) that an opinion of the Supreme Court becomes final on the 21st day of its rendition unless a petition for rehearing under Rule 76.32 has been timely filed. The rule further provides under subsection (c) that in the event a timely petition is filed under Rule 76.32 and if it is in the Supreme Court and is denied, the opinion becomes final immediately upon such denial. No mandate is apparently required to effectuate the final decision under subsection (f).
With the above rules in mind and with what we have previously found, we believe the vacancy actually occurred on August 1 or at most on August 8. With respect to the latter date, CR 76.44 only authorizes a stay in the enforcement of an opinion under certain conditions pending review by the U.S. Supreme Court that were not present as the Court's denial indicated. In any event, whether the vacancy actually occurred on the 1st or the 8th, it still occurred before the inception of the three-month or 90-day deadline provided in Section 152 of the Constitution, the 90th day being the 8th which would be the last day the vacancy could occur under the terms of KRS 446.030 governing the computation of time that would require an election this November to fill the unexpired term. See Perry v. Baesler, Ky. 616 S.W.2d 38 (1981).
As further support for the office becoming vacant when the judgment of the Court became final, we refer by comparison to the provisions of KRS 63.120 pertaining to appeals taken from an order removing a peace officer by the Governor following a hearing under KRS 63.100 to 63.120. Under this latter statute, particularly subsection (2), we find the provision that if the order of removal entered by the Governor is affirmed by the Court it shall become effective immediately and the office held by the peace officer shall be deemed vacant.
Thus under the circumstances, we believe that since the vacancy occurred in the 23rd Judicial District before the three-month or 90-day deadline prescribed in Section 152 of the Constitution, it must be filled at the coming November election, and further that any candidate who filed before the 70-day deadline [KRS 118A.100(3)], which would be on or before August 28, is entitled to have his name certified by the Secretary of State to the various county clerks of the counties within the judicial district.