Request By:
Mr. Gary W. Gillis
Secretary
Revenue Cabinet
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
You relate that a few days before the primary election the unopposed Republican candidate for Property Valuation Administrator (PVA), who was the incumbent PVA in Adair County, died. The only other person having a qualified certificate issued pursuant to KRS 132.380(1) qualifying him to run for PVA is the unopposed Democratic candidate. Under the circumstances, you raise the following questions:
"1. Is the giving of a special examination mandatory in light of the provisions of KRS 118.105(3) or any other provisions in the law?
"2. If a special examination is given, should all persons be permitted to take the examination or should the takers be limited to registered Republicans?"
Our response to your initial question would be in the affirmative. KRS 118.105(3) contains the following provision:
"(3) If a vacancy occurs in the nomination of an unopposed candidate or in a nomination made by the primary before the ballots are printed for the regular election, the governing authority of the party may provide for filling the vacancy. When such a nomination has been made, the certificate of nomination shall be signed by the chairman and secretary of the governing authority of the party making it, and shall be filed in the same manner as certificates of nomination at a primary election. " (Emphasis added.)
The above statute clearly authorizes the Republican party to select a candidate to fill the vacancy in the party's nomination resulting in the death of its nominee.
KRS 132.380 provides that before any person's name shall appear on the ballot as a candidate for public office in any primary or general election, he must hold a certificate issued by the Revenue Cabinet concerning his qualifications to hold the position of PVA. Subsection (2) provides that if after the giving of the examination as provided in subsection (1) there is only one person qualified to be a candidate in the county, the Revenue Cabinet shall hold a second examination prior to the filing date in each congressional district where necessary. This statutory provision would appear to authorize the holding of a special examination since there is at this point in time only one candidate holding a valid certificate, that being the Democratic nominee. However, even if it is not technically sufficient authority to authorize, in this peculiar situation, the giving of a second examination to permit the Republican party to select a person holding a valid certificate, we believe that the provisions of KRS 118.105(3) clearly require that such an examination be given. Otherwise, the statute giving the party the right to select a replacement of the deceased candidate would be nullified. To bolster this position we refer you to the case of
Noffsinger v. Parham, 276 Ky. 460, 124 S.W.2d 472 (1939) from which we quote the following:
". . . Plainly, the purpose of the legislature was to secure properly qualified persons for the office of county tax commissioner. Equality of opportunity to all persons desiring to become candidates was sought to be secured by the fixed dates for examination. On the other hand, where an emergency arises as is shown to have existed in 1932, when the incumbent tax commissioner died, the wholesome effect of the statute might be entirely nullified if no special examination could be held. . . ."
Under the circumstances, we do not believe the legislature intended to nullify the party's statutory authority to select a nominee to replace the deceased candidate by not permitting otherwise constitutionally qualified persons the opportunity to obtain the required certificate and be selected as the party's nominee.
In answer to your second question, we believe that the examination must be limited to registered Republicans since the Democratic party has a qualified nominee and it is too late for Independent candidates to file for the office of PVA under the terms of KRS 118.365(6).