Request By:
Trey Grayson, Secretary of State
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Herrick, Assistant Attorney General
Opinion of the Attorney General
KRS 121.160(1), a section of the Corrupt Practices Act governing campaign finance, requires a candidate or slate of candidates for elective office to designate a campaign treasurer at the time of filing for office. OAG 85-30. Secretary of State Trey Grayson has requested an opinion on the following question: "Should a filing official deny ballot access to a candidate who has timely presented the proper nominating document but failed to present the form prescribed by the Registry [of Election Finance] designating a campaign treasurer pursuant to KRS 121.160?"
Since there are no published cases or opinions on point, this question presents an issue of first impression. KRS 121.160(1) states as follows:
As part of the filing papers each candidate or slate of candidates shall, on a duplicate form prescribed and furnished by the registry, designate a campaign treasurer to act as their agent at the time and at the office with which they file as a candidate or slate of candidates and until this requirement is met the candidate or slate of candidates shall be listed as their own treasurer and accountable as such. The candidate or slate of candidates may appoint themselves or any registered voter in Kentucky as the campaign treasurer. The office with which the candidate or slate of candidates is required to file shall immediately forward to the registry the duplicate copy of the completed form designating the candidate's or slate's campaign treasurer and shall attach the original to the candidate's or slate's filing papers. The office with which the candidate or slate of candidates files shall promptly notify the registry when a candidate withdraws.
The language "As part of the filing papers" is crucial because of its relationship to various provisions of KRS Chapter 118, the chapter governing the conduct of elections. KRS 118.165, for example, governs the filing of "nomination papers" with the Secretary of State or county clerk:
1. Except as provided in KRS Chapters 116 to 121, candidates for offices to be voted for by the electors of one (1) county or of a district less than one (1) county, except members of Congress and members of the General Assembly, shall file their nomination papers with the county clerk of the county not earlier than the first Wednesday after the first Monday in November of the year preceding the year the office will appear on the ballot and not later than the last Tuesday in January preceding the day fixed by law for holding the primary election. Candidates for offices to be voted for by the electors of more than one (1) county, and for members of Congress and members of the General Assembly, shall file their nomination papers with the Secretary of State not earlier than the first Wednesday after the first Monday in November of the year preceding the year the office will appear on the ballot and not later than the last Tuesday in January preceding the day fixed by law for holding the primary election. All nomination papers shall be filed no later than 4 p.m. local time at the place of filing when filed on the last date on which the papers may be filed.
2. The Secretary of State or the county clerk shall examine the notification and declaration form of each candidate to determine whether it is regular on its face. If there is an error, the proper officer shall notify the candidate by certified mail within twenty-four (24) hours of filing.
Similarly, KRS 118.185 provides:
If it appears, after the expiration of the time for filing nomination papers, that there is only one (1) candidate who has filed the necessary papers for a place on the ballot of any party on whose ballot he is entitled to have his name printed, the officer with whom the papers are filed shall immediately issue and file in his office a certificate of nomination, and send a copy to the candidate.
Neither "filing papers" nor "nomination papers" is expressly defined within the chapter in which it appears. The meaning of "nomination papers," however, can be ascertained from the context in which it appears in certain provisions of Chapter 118.
Meaning of "nomination papers" in KRS Chapter 118
KRS 118.212 enumerates the circumstances under which a candidate's name should not be certified or, if already certified, should not appear on the ballot. Subsection (1) is typical of the language used in that statute to describe a candidate's filings in situations that may occur both before and after certification of the candidates:
If, before the time of certification of candidates who will appear on the ballot provided in KRS 118.215, any candidate whose notification and declaration or certificate or petition of nomination has been filed in the office of the Secretary of State dies or notifies the Secretary of State in writing, signed and properly notarized that he will not accept the nomination or election, the Secretary of State shall not certify his name.
Meanwhile, KRS 118.215 , the statute referenced in KRS 118.212, provides the following in subsection (1):
After the order of the names has been determined as provided in KRS 118.225, the Secretary of State shall certify, to the county clerks of the respective counties entitled to participate in the nomination or election of the respective candidates, the name, place of residence, and party of each candidate or slate of candidates for each office, as specified in the nomination papers or certificates and petitions of nomination filed with him. . . .
In subsection (4), the same statute provides:
The Secretary of State shall not knowingly certify to the county clerk of any county the name of any candidate or slate of candidates who has not filed the required nomination papers, nor knowingly fail to certify the name of any candidate or slate of candidates who has filed the required nomination papers.
There is a close parallel in language between KRS 118.212 ("notification and declaration or certificate or petition of nomination" ) and KRS 118.215(1) ("nomination papers or certificates and petitions of nomination" ). The context implies that "notification and declaration" and "nomination papers" are interchangeable.
Since both KRS 118.212 and KRS 118.215 are addressed to the certification of names of candidates, the sections are in pari materia and should be construed together. Com. v. Kerr, 136 S.W.3d 783 (Ky.App. 2004). Furthermore, KRS 118.212, which refers to the "notification and declaration, " was last amended in 2003, more recently than KRS 118.215, which refers to the "nomination papers." "If it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute." Kotila v. Com., 114 S.W.3d 226, 238 (Ky. 2003)(quoting California School Township, Starke County v. Kellogg, 33 N.E.2d 363, 366 (Ind. App. 1941)). We therefore conclude that the meaning of "nomination papers," as used in KRS Chapter 118, is identical with a candidate's notification and declaration as required by KRS 118.125.
Effect of 1994 amendment to KRS 121.160(1)
The language "As part of the filing papers" was added in a 1994 amendment to KRS 121.160. The question is whether the legislature intended, by adding this language, to include the form designating a campaign treasurer within the documentation constituting the "nomination papers" in the relevant sections of Chapter 118, without which a candidate's name cannot appear on the ballot.
Prior to the 1994 amendment, the first sentence of KRS 121.160(1) read:
Each candidate or slate of candidates shall designate a campaign treasurer to act as their agent at the time and at the office with which they file as a candidate or slate of candidates on a duplicate form prescribed and furnished by the registry and until this requirement is met the candidate or slate of candidates shall be listed as their own treasurer and accountable as such.
In this earlier version of the statute, it was already stated that the designation form was to be executed "at the time and at the office with which they file as a candidate or slate of candidates. " What must be determined, therefore, is whether the introductory phrase "As part of the filing papers" is meant merely as a further specification of the manner in which the form is to be submitted, or as a change in the meaning of "nomination papers" as used in Chapter 118.
It simplifies the analysis to observe that the exact phrase "nomination papers" is not used in the amendment to KRS 121.160(1). Statutes must be read, where possible, in harmony with each other rather than in conflict. Ledford v. Faulkner, 661 S.W.2d 475 (Ky. 1983). Moreover, the fact that the expressions "filing papers" and "nomination papers" are used in separate statutory chapters, addressed to separate purposes, tends to negate any inference that the amendment in Chapter 121 was meant to contradict or alter the established meaning of provisions in Chapter 118.
In addition, we note that as part of the same 1994 enactment that added the phrase "As part of the filing papers" to KRS 121.160(1), the General Assembly amended and reenacted KRS 118.125, subsection (1) of which reads:
Except as provided in KRS 118.155, any person who is qualified under the provisions of KRS 116.055 to vote in any primary election for the candidates for nomination by the party at whose hands he seeks the nomination, shall have his name printed on the official ballot of his party for an office to which he is eligible in that primary, upon filing, with the Secretary of State or county clerk, as appropriate, at the proper time, a notification and declaration.
"Interrelated sections . . . enacted as parts of a single integrated statute . . . must be construed in harmony with each other." Daviess Co. v. Snyder, 556 S.W.2d 688, 691 (Ky. 1977). Since the legislature reaffirmed, essentially in the same breath as the amendment in question, that only the "notification and declaration" are required under KRS Chapter 118 for a candidate's name to appear on the primary ballot, there is every indication that it is not the intent of KRS 121.160(1) to prevent a candidate who fails to designate a treasurer from appearing on the ballot.
Sanctions for violation of KRS 121.160(1)
By way of further corroboration of this conclusion, it is evident that the legislature has provided sufficient means for enforcing the requirements of KRS 121.160(1) without barring a candidate's name from the ballot. By the terms of the statute itself, the only repercussion of a failure to file the designation form is that the candidate himself is deemed to be the campaign treasurer. If, however, another person were to serve as treasurer without the candidate's having filed the proper form, there would undoubtedly be a violation of subsection (1).
Various sanctions for violations of KRS 121.160 are provided in KRS 121.990. Subsection (3) of that statute, for example, declares any knowing violation of KRS 121.150 to 121.230 a Class D felony. Additionally, subsection (4) of KRS 121.990 provides:
The nomination for, or election to, an office of any candidate or slate of candidates who knowingly violates any provision of KRS 121.150 to 121.220, or whose campaign treasurer knowingly violates any provision of KRS 121.150 to 121.220, with the knowledge of the candidate or slate of candidates, shall be void, and, upon a final judicial determination of guilt, the office shall be declared vacant and the officeholder shall forfeit all benefits which he would have been entitled to receive had he continued to serve, and the office or candidacy shall be filled as provided by law for the filling of a vacancy. An action to declare a vacancy under this subsection may be brought by the registry, the Attorney General, any candidate or slate of candidates for the office sought to be declared vacant, or any qualified voter.
Finally, under subsection (5):
The Attorney General, Commonwealth's attorney, the registry, or any qualified voter may sue for injunctive relief to compel compliance with the provisions of KRS 121.056 and KRS 121.120 to 121.230.
Conclusion
Accordingly, it is our opinion that a candidate for office who fails to file the required form designating a campaign treasurer pursuant to KRS 121.160(1) should not, for that reason alone, be denied the right to appear on the ballot. At the same time, we note that other sanctions may be imposed by law for failure to make the required designation.