Request By:
Tonya Arnett Ward
Magoffin County Circuit Court Clerk
Opinion
Opinion By: Daniel Cameron,ATTORNEY GENERAL; Aaron J. Silletto,Assistant Attorney General
Opinion of the Attorney General
KRS 117.315(2) provides that any school board candidate, independent ticket or candidate for city office, nonpartisan city candidate, or "candidate for an office of the Court of Justice" may appoint a challenger in each precinct at any primary or general election. KRS Chapter 117 does not define "an office of the Court of Justice." The Magoffin County Circuit Court Clerk asks whether, as a candidate for circuit court clerk, she is a "candidate for an office of the Court of Justice," as that phrase is used in KRS 117.315(2), and therefore may designate an election challenger under that statute. For the reasons below, it is the Attorney General's opinion that the office of circuit court clerk is not an "office of the Court of Justice," as that term is used in KRS 117.315(2). Accordingly, a candidate for the office of circuit court clerk may not designate challengers. 1
Section 97 of the Kentucky Constitution creates the offices of circuit court clerk and Commonwealth's attorney. The Kentucky Constitution provides that circuit court clerks are county officers, see Ky. Const. § 100, while Section 114 appears to organize the office of circuit court clerk within the judicial department. See Ky. Const. § 114(3) ("The clerks of the Circuit Court shall be removable from office by the Supreme Court upon good cause shown."); see also KRS 30A.010(2) (providing that circuit court clerks are "personnel within the Court of Justice" and "subject to the administrative control of the Chief Justice"); KRS 30A.150 (providing the chief judge of a judicial circuit with the authority to appoint a circuit court clerk when a vacancy occurs). But these provisions do not answer the question whether, under KRS 117.315(2), a circuit court clerk is a "candidate for an office of the Court of Justice."
KRS 117.315 provides a clear indication of legislative intent. Subsections (1) and (3) permit the local executive committee of a political party to designate not more than two challengers at each precinct during primary, regular, and special elections. Subsection (2) permits "[a]ny school board candidate, any independent ticket or candidate for city office, any nonpartisan city candidate, or candidate for an office of the Court of Justice" to designate not more than one challenger at each precinct for primary and regular elections. The distinction is clear: candidates who run as an independent or on a nonpartisan basis may appoint their own challenger. Candidates who run on a partisan basis--such as circuit court clerks--may not.
KRS 118A.010(4) defines "election" to mean only "elections for offices of the Court of Justice." The elective offices within KRS Chapter 118A include only Justices of the Supreme Court, KRS 118A.020; Judges of the Court of Appeals, KRS 118A.030; Circuit Judges, KRS 118A.040; Family Court Judges, KRS 118A.045; and District Judges, KRS 118A.050. Accordingly, KRS Chapter 118A is specific to the election of Justices and Judges. 2Candidates for these judicial races run on a nonpartisan basis.
Conversely, elections for circuit court clerk are governed by the generally applicable provisions of KRS Chapter 118. See, e.g. , KRS 118.215(1) (listing "circuit clerk" as one of the offices subject to KRS Chapter 118). Elections for circuit court clerk are conducted on a partisan basis with the candidate of the party that polled the highest number of votes as the preceding election for President being listed first. See KRS 118.215(1). The partisan / nonpartisan distinction between judicial elections and circuit court clerk elections compels the answer here.
We also note that at the same time the General Assembly codified KRS Chapter 118A, it added the phrase "candidate for an office of the Court of Justice" to KRS 117.315(2). See 1976 Ky. Acts ch. 54 § 22. The General Assembly, therefore, used the same term, "office of the Court of Justice," in two sections of the same Act. Compare KRS 117.315(2) with KRS 118A.010(4). Of course, a phrase used in two statutes that relate to the same subject should generally be afforded a uniform meaning in both statutes, especially when those statutes were enacted or amended to include that term in the same legislation.
Osborne v. Keeney , 399 S.W.3d 1, 22 (Ky. 2012) (statutes on the same subject matter are in pari materia and "should be construed together and, if possible, should be construed so as to harmonize and give effect to provisions of each" (citation omitted));
Lewis v. Jackson Energy Co-op. Corp. , 189 S.W.3d 87, 92 (Ky. 2005) ("[A] statute must be read as a whole and in context with other parts of the law."). Accordingly, this supports our conclusion that "an office of the Court of Justice" in KRS 117.315(2) has the same meaning as in KRS Chapter 118A, namely the offices of Judges and Justices.
On this basis, it is the Attorney General's opinion that a circuit court clerk is not, for the limited purpose of construing KRS 117.315(2), a candidate for "an office of the Court of Justice." Thus, a candidate for that office may not appoint an election challenger under KRS 117.315(2).
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