DARBY FRANKLIN V. CICELY JARACZ LAMBERT, in her official Office of the Courts AND DONNA PELFREY
Annotate this Case
Download PDF
RENDERED: APRIL 26,200l
TO BE PUBLISHED
2001 -SC-0064-OA
DARBY FRANKLIN
V.
PETITIONER
ORIGINAL ACTION
CICELY JARACZ LAMBERT, in her official
capacity as Director of the Administrative
Office of the Courts
RESPONDENT
AND
DONNA PELFREY
INTERVENING RESPONDENT
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT AND ORDER
DENYING PETITION FOR WRIT OF PROHIBITION
The issue presented is whether SCR 1.060(4),
a provision which requires
a special qualifying examination for applicants seeking appointment to the office of
circuit court clerk upon the occurrence of a vacancy, limits the number of times that the
examination may be administered to any one person. To resolve this issue of first
impression, we must look to the specific language of SCR 1.060(4), as well as KRS
30A.150,
the statute governing the appointment process. We will also address the
policies underlying the examination of persons aspiring to the office of circuit court
clerk.
The facts of this case are as follows. In December 2000, following the
retirement announcement of the Morgan Circuit Court Clerk, Circuit Judge Samuel C.
Long designated Petitioner, Darby Franklin, and Intervening Respondent, Donna
Pelfrey, to be administered a special clerk’s examination pursuant to SCR 1.060(4)
for
the purpose of determining their eligibility to fill the vacancy. To be qualified, an
applicant for circuit court clerk must receive a grade of 70% or more on the
examination.’ After eligibility is determined, the appointment is made by the chief circuit
judge pursuant to KRS 30A. 150 until a replacement is elected as provided in section
152 of the Constitution of Kentucky.
Upon receiving the designations set forth above, the Administrative Office
of the Courts (“AOC”) prepared the examination and administered it to both applicants
on January 5, 2001. The examination was first graded electronically. Franklin received
a passing grade on the examination; Pelfrey did not. Pelfrey’s examination was later
re-graded by hand, as provided by internal AOC policy for applicants who have scored
between 65% and 70%. Pelfrey’s score was determined to be 69.25%.
Prior to taking the test, Pelfrey wrote AOC a letter identifying various
differences between the printed study materials and prevailing office practices. As a
result of this complaint, there was a second review of Pelfrey’s examination, and it
revealed an error in the answer key. Accordingly, Pelfrey’s final score was determined
to be 69.85%.
‘SCR 1.060(2).
-2-
On January 22,2001, Judge Long contacted AOC and requested that
Pelfrey be given another opportunity to take the examination. In support of his request,
Judge Long cited Pelfrey’s many years of deputy clerk service, her extremely close to
passing score, and the alleged flawed study materials. AOC agreed to allow Pelfrey to
re-take the examination, and she took it again on January 26, 2001. This examination
has been graded, yet the results have not been certified or released.
Upon learning that Pelfrey had been allowed to re-take the examination,
Franklin sent AOC a letter of protest. He then filed a motion in this Court pursuant to ’
CR 57 and CR 76.36 seeking to prohibit Cicely Jaracz Lambert, in her official capacity
as Director of AOC, from administering the special examination more than once to any
candidate, from grading any additional examination that had already been
administered, and from certifying the results of any additional examination. Franklin
also filed a motion for intermediate relief, seeking to prohibit AOC from releasing or
certifying the results of the January 26 special examination pending this Court’s ruling
on the underlying motion. This Court granted Franklin’s motion for intermediate relief,
and also stayed the appointment process provided for in KRS 30A.150 until further
order of the Court.
SCR 1.060(4)
provides as follows:
In the event of a vacancy in the office of the circuit court
clerk, a special examination shall be prepared by the
Administrative Office of the Courts to be administered to
such person or persons designated by the chief circuit judge
responsible for filling the vacancy by appointment, and to be
administered to prospective candidates for election to fill the
unexpired term.
Franklin contends that SCR 1.060(4)
prohibits the administration of more than one
special examination when there is a vacancy to be filled by appointment. He construes
-3-
the language “a special examination shall be” to be a limit of one special examination
because the phrase is in the singular. We do not interpret the rule so narrowly. The
language used neither prohibits nor explicitly authorizes the administration of multiple
examinations. The language is quite general in nature, as it merely mandates that a
special examination be administered and that AOC be the agency responsible for
preparation of the examination. In fact, the rule simply does not address a situation, as
here, in which there were two applicants for the appointment where one passed and the
other failed, but the appointing authority requested a second examination for the failing
applicant. There could be no doubt that if both applicants had failed, a subsequent
examination would have been necessary. * The language of the rule does not address
contingencies and its failure of specificity in this regard should lead to a broad
construction, provided, however, that the distinction between applicants for appointment
and persons taking the examination to gain ballot access be clearly understood. See,
infra.
The only case construing the provisions of SCR 1.060 is Combs v. H~ff.~
In Combs, two persons wanted to run for the office of Knott Circuit Court Clerk on the
Democratic ticket in 1993. Huff was exempt from taking the examination by virtue of his
incumbency. Combs took the test but did not receive a passing grade. Combs sought
to be a candidate, nevertheless, arguing that he was entitled to a post-election
opportunity to take the examination to gain certification. This Court affirmed the rule
*Just such a situation occurred in December, 1994, when a person
designated to take a vacancy test for Cumberland County Circuit Court clerk failed.
She was re-tested, along with another person, and both received passing grades.
3Ky., 858 S.W.2d 160 (1993).
-4-
and held that eligibility for the office must be determined prior to gaining access to an
election ballot.4 Combs was thus prevented from running for office.
Franklin reads Combs to impose a limit of one examination, but we
distinguish Combs from the instant case because it dealt with the clerk’s examination
administered to persons seeking the office through the electoral process, not to persons
seeking appointment to a vacancy. The critical distinction is twofold: in the event of a
vacancy, KRS 30A. 150 requires that the chief circuit judge appoint a qualified
successor, and the appointment must occur within a limited amount of time.
Specifically, KRS 30A. 150 provides,
Whenever a vacancy occurs in the office of the clerk, the
chief judge of the judicial circuit shall within thirty (30) days
appoint a qualified successor to the office who shall serve
until replaced as provided by Section 152 of the
Constitution.
Necessarily, therefore, the views of the chief circuit judge, by virtue of being the
appointing authority, are entitled to considerable weight. The responsibility to appoint a
“qualified” person within a short time confers on the judge the power to require a
subsequent examination even if one or more persons so examined have passed the
first examination. Our view as to the distinction between election and appointment and
its effect on the examination process is strengthened by reference to SCR 1.060(3)
(4). SCR 1.060(3)
and
is detailed as to the requirements of the examination, and SCR
1.060( 1) mandates successful completion before a candidate is qualified. As
determined in Combs v. Huff, success on the examination is a prerequisite for seeking
the office. In contrast, SCR 1.060(4)
is without any such specificity, as all the
4See SCR 1.060(3).
-5-
circumstances that might arise in the process of filling a vacancy could not be
reasonably anticipated.
This Court is not unmindful of language appearing in Combs v. Huff in
which we describe multiple examinations as an “absurdity,” and we do not retreat from
this view. However, we are persuaded from the text and architecture of the relevant
constitutional, statutory, and rules provisions that in this circumstance, the possibility of
multiple examinations must be tolerated. In that context, we note that any person
appointed to fill a vacancy will occupy the office only until the next opportunity of the
voters to choose the official.
Upon the foregoing reasons, the request for a writ of prohibition is hereby
denied, and the results of Pelfrey’s examination shall be released and certified. The
stay of proceedings entered herein on January 26, 2001, is hereby vacated
IT IS SO ORDERED.
Cooper, and Johnstone, JJ., concur. Keller, J., files a separate concurring
opinion. Wintersheimer, J., dissents by separate opinion in which Graves, J., joins.
Stumbo, J., not sitting.
ENTERED: April 26,200l.
-6-
COUNSEL FOR PETITIONER:
James J. Barrett III
Joseph Lane
PILLERSDORF, DEROSSETT & BARRETT
124 West Court Street
Prestonsburg, KY 41653
COUNSEL FOR RESPONDENT:
Carol C. Ullerich
General Counsel
Administrative Office of the Courts
100 Millcreek Park
Frankfort, KY 40601
Christopher M. Hill
CHRISTOPHER M. HILL &ASSOCIATES, PSC
1030 Burlington Lane, Suite 3B
P. 0. Box 4989
Frankfort, KY 406044989
COUNSEL FOR INTERVENING RESPONDENT:
Brent L. Caldwell
MCBRAYER, MCGINNIS, LESLIE & KIRKLAND, PLLC
163 West Short Street, Suite 300
Lexington, KY 40507
-7-
RENDERED: APRIL 26,200l
TO BE PUBLISHED
2001 -SC-0064-OA
PETITIONER
DARBY FRANKLIN
V.
ORIGINAL ACTION
CICELY JARACZ LAMBERT, in her official
capacity as Director of the Administrative
Office of the Courts
RESPONDENT
AND
DONNA PELFREY
INTERVENING
RESPONDENT
CONCURRING OPINION BY JUSTICE KELLER
While I concur wholeheartedly in the final result reached by the majority, I
traveled a different route to arrive at that result. Accordingly, I write separately to
explain my concurrence.
In my opinion, this case represents another reminder of the quagmire this Court
enters each time it attempts to unilaterally “improve upon” the Kentucky Constitution.’
break paths with the majority from the very outset because I believe that Kentucky
Constitution § 100 - and not our dubiously constitutional Supreme Court Rule 1.060 governs the disposition of this matter. Section 100 provides in pertinent part:
‘See e.g., Kentucky Utils. Co. v. South East Coal Co., 836 S.W.2d 407 (1992)
(announcing “special justice” policy); Kuorion v. Fitzaerald, Ky., 888 S.W.2d 679 (1994)
(announcing family court pilot project).
I
No person shall be eligible to the office of Clerk unless he
shall have procured from a Judge of the Court of Appeals, or
a Judge of a Circuit Court, a certificate that he has been
examined by the Clerk of his Court under his supervision,
and that he is qualified for the office for which he is a
candidate.2
Section 100 thus outlines the procedure by which a candidate for clerk becomes eligible
for the office and it is not the least bit ambiguous. In fact, it is exceedingly explicit - a
3
person procures certification from either a circuit court or a Court of Appeals judge
that, under the judge’s supervision, he or she was examined by the clerk of the judge’s
court and found qualified for the office.
For 135 years4 judges of the circuit courts and the Court of Appeals determined
the eligibility of prospective clerks pursuant to the constitutional procedure without any
controversy or challenge as to its fairness.5 Yet, this Court adopted SCR 1 .0606 and
2Ky. Const. § 100.
3The Judges of the Court of Appeals in office on the effective date of the Judicial
Article became Justices of the Supreme Court. Kentucky Acts 1974, ch. 84, § 2(l). A
question, therefore, exists as to whether Section 100’s reference to a “Judge of the
Court of Appeals” contemplates a Court of Appeals Judge or a Supreme Court Justice.
That question is not relevant to the disposition of the matter now before the Court.
4A provision identical to Section 100 was contained in Kentucky’s immediate
prior Constitution. Ky. Const. of 1850 art. VI, § 2 (repealed 1891).
%uch criticism has, however, been levied against the SCR 1.060 procedure. As
noted in the majority opinion, the AOC study materials conflicted with local office
practices: “Pelfrey wrote AOC a letter identifying various differences between the
printed study materials and prevailing office practices.” Majority Opinion at - S.W.3d
- (2001). This cannot be blamed upon AOC since, even with an unified court system,
differences remain because of local office practices. AOC deserves praise for its
efforts in this matter as well as for completing the reexamination within the thirty (30)
day-period allotted by KRS 30A.150.
‘SCR 1.060 CIRCUIT COURT CLERKS
(1) Pursuant to Section 100 of the Constitution of Kentucky
no person shall be eligible to seek the office of circuit clerk
(continued...)
-2-
thereby arrogated the absolute authority to determine eligibility of circuit clerks.’ In so
doing, this Court usurped the powers of both the General Assembly and the voters of
‘(...continued)
unless he shall have procured from a judge of the Court of
Appeals, or a judge of the circuit court, a certificate that he
has been examined by the clerk of his court under his
supervision, and that he is qualified for the office for which
he is a candidate.
(2) No such certificate shall be issued to any person unless
that person has received a passing grade of 70% or more on
a standard examination to be prepared and administered by
the Administrative Office of the Courts. The examination
shall include questions pertaining to the materials included in
the Circuit Clerk’s Manual, Circuit Clerk’s Accounting
Manual, and the Personnel Policies of the Court of Justice.
(3) The examination shall be given once each year in which
circuit clerks are elected on the third Saturday in January.
No person shall be eligible to appear on any election ballot
for the office for circuit clerk who has not successfully
completed the examination in the year of such election, and
been so certified except no incumbent circuit clerk shall be
required to be re-certified.
(4) In the event of a vacancy in the office of circuit clerk, a
special examination shall be prepared by the Administrative
Office of the Courts to be administered to such person or
persons designated by the chief circuit judge responsible for
filling the vacancy by appointment, and to be administered to
prospective candidates for election to fill the unexpired term.
‘Combs v. Huff, Ky., 858 S.W.2d 160 (1993) (“mhe duty to determine clerk
eligibility formerly imposed on any Circuit Judge or any Judge of the Court of Appeals
now rests exclusively with the Supreme Court.” M. at 161.).
-3-
this Commonwealth8 by judicially amending Kentucky Constitution § 100 and
substituting the Administrative Office of the Courts for the judge’s clerk:
No such certificate shall be issued to any person unless that
person has received a passing grade of 70% or more on a
standard examination to be prepared and administered by
the Administrative Office of the Courts. The examination
shall include questions pertaining to the materials included in
the Circuit Clerk’s Manual, Circuit Clerk’s Accounting
Manual, and the Personnel Policies of the Court of Justice.g
In Combs v. Huff,” although the parties did not dispute the Court’s power to
determine clerk eligibility,” this Court attempted to justify its unilateral decision to alter
the constitutional eligibility procedure:
8Ky. Const. § 256 (“Amendments to this Constitution may be proposed in either
House of the General Assembly at a regular session, and if such amendment or
amendments shall be agreed to by three-fifths of all the members elected to each
House, such proposed amendment or amendments, with the yeas and nays of the
members of each House taken thereon, shall be entered in full in their respective
journals. Then such proposed amendment or amendments shall be submitted to the
voters of the State for their ratification or rejection at the next general election for
members of the House of Representatives[] . . . . If it shall appear that a majority of the
votes cast for and against an amendment at said election was for the amendment, then
the same shall become a part of the Constitution of this Commonwealth[] . . . .” M.); Ky.
Const. 5 27 (“The powers of the government of the Commonwealth of Kentucky shall
be divided into three distinct departments, and each of them be confined to a separate
body of magistracy, to wit: Those which are legislative, to one; those which are
executive, to another; and those which are judicial, to another.” Id.); Ky. Const. § 28
(“No person or collection of persons, being of one of those departments, shall exercise
any power properly belonging to either of the others, except in the instances hereinafter
expressly directed or permitted.” @.).
‘SCR 1.060(2).
“KY., 858 S.W.2d 160 (1993).
“M. (“Appellant first contends that SCR 1.060 violates Section 100 of the
Constitution of Kentucky by requiring that eligibility be determined prior to gaining
access to the election ballot. He acknowledaes the oower of this Court to establish a
standardized examination for determination of aualifications, but insists that the
Constitution requires an opportunity to obtain certification after the election but prior to
assuming office.” Id. at 161 (emphasis added)).
-4-
Initially, we observe that the duty to determine eligibility was
imposed on a judge of the circuit court or Court of Appeals.
With the adoption of the Judicial Article, Constitution
Sections 109-124, effective January 1, 1976, the Court of
Justice became a unified judicial system. See Constitution of
Kentucky, Section 109. By virtue of Section 110(5)(b), which
designates the Chief Justice as executive head of the Court
of Justice, and the rule-making power conferred on the
Supreme Court by Section 116 of the Constitution, it is
indisputable that the duty to determine clerk eligibility
formerly imposed on any Circuit Judge or any Judge of the
Court of Appeals now rests exclusively with the Supreme
Court. As such, there could be no serious contention that
this Court lacks plenary power to determine clerk eligibility
limited only by express provisions of the Constitution. [See
Ex Parte Farley, Ky., 570 S.W.2d 617 (1978)].”
I dispute that such a duty properly rests with this Court by virtue of the Judicial
Amendment, and I contend that this Court lacks the power to determine circuit clerk
eligibility.
I believe it important to note that Section 100 does not conflict with any provision
of the Judicial Amendment,13
and therefore, it was not repealed or modified by the
enactment of that amendment.14
In fact, the Judicial Amendment itself provides “[t]he
clerks of the Circuit Court shall be elected in the manner provided elsewhere in this
Constitution.“15
The only other Constitutional provisions concerning the election of
circuit clerks provide:
l3 Ky. Const. §§ 109 - 124. These sections are often referred to as either the
“Judicial Amendment” or “Judicial Article” to Kentucky’s Constitution.
14By implication, sections consistent with the provisions of the Judicial
Amendment were not repealed and remained in full force and effect. Ky. Const. § 124
(“Any remaining sections of the Constitution of Kentucky as it existed prior to the
effective date of this amendment which are in conflict with the provisions of amended
Sections 110 through 125 are repealed to the extent of the conflict[.]” M.).
15Ky. Const. § 114(3).
2%
l
“[Elvery six years . . . , there shall be an election in each county for a Circuit
Court Clerk[] . . . .“16
w
“No person shall be eligible to the office[] mentioned in Section[] 97 . . . who is
not at the time of his election twenty-four years of age (except Clerks of . . .
Circuit Courts, who shall be twenty-one years of age), a citizen of Kentucky, and
who has not resided in the State two years, and one year next preceding his
election in the county and district in which he is a candidate.“”
b
“No person shall be eligible to the office of Clerk unless he shall have procured
from a Judge of the Court of Appeals, or a Judge of a Circuit Court, a certificate
that he has been examined by the Clerk of his Court under his supervision, and
that he is qualified for the office for which he is a candidate.“”
Nowhere in the Constitution, including the Judicial Amendment, is the Supreme Court
empowered to prescribe additional qualifications for circuit clerks. Accordingly, this
Court had no authority, either expressed or implied, to adopt SCR 1.060 and thereby
impose the additional qualification upon a person seeking election to the office of circuit
clerk that he or she Veceive[] a passing grade of 70% or more on a standard
examination to be prepared and administered by the Administrative Office of the
courts.“‘g Being without such authority, this Courts arrogation of the power to
determine clerk eligibility was in clear violation of the Constitution,*’ even if done for the
16Ky. Const. § 97.
“KY. Const. § 100.
“SCR 1.060(2).
*‘Brouahton v. Pursifull, Ky., 53 S.W.2d 200, 245 Ky. 137 (1932) (“It is the rule
that, when the Constitution of a state creates an office, and names the requirements of
eligibility therefor, the Legislature has no authority to make additional requirements[] . . .
.” u. at page 53 S.W.2d 202 (quoting with approval from Jansky v. Baldwin, 243 P. 302,
303 (1926)); M. (“Where the constitution has clearly defined the qualifications of an
officer, it is not within the power of the legislature to change them or add new or
additional qualifications, unless the constitution confers that power.” Id. at page 53
S.W.2d 203 (quoting with approval from 46 Corpus Juris, Officers). A fortiori, this Court
(continued...)
-6-
laudable purpose of “assur[ing] that each clerk is competent to discharge the duties of
the office.“*’
Further, the justifications given by the Court in Combs v. Huff for the AOC
testing requirement (i.e., “becom[ing] a unified judicial system,” “designat[ing] the Chief
Justice as executive head of the Court of Justice” and conferring “rule-making power on
the Supreme Court,“) are simply not relevant to the inquiry of whether this Court
properly or improperly assumed the power to determine clerk eligibility. For example,
Kentucky Constitution § 116 provides, in its entirety:
The Supreme Court shall have the power to prescribe rules
governing its appellate jurisdiction, rules for the appointment
of commissioners and other court personnel, and rules of
practice and procedure for the Court of Justice. The
Supreme Court shall, by rule, govern admission to the bar
and the discipline of members of the bar.22
The Court did not attempt to elaborate how its power to determine clerk eligibility
derived from Section 116 and for good reason; it did not. Circuit clerks, like judges and
justices, are elected Constitutional Officers;
they are not appointive court personnel.
Unquestionably, this Court’s rule-making authority empowers us to govern the Court of
Justice. No credible argument can be made, however, that our rule-making authority
allows us to amend constitutional provisions establishing the qualifications for
Constitutional Offices.
*‘(...continued)
too should not change the constitutional qualifications of an officer. If this Court, above
all others, ignores the Constitution, how can anyone have respect for the Constitution?
21Combs v. Huff, Ky., 858 S.W.2d 160, 163 (1993).
**KY. Const. § 116.
-7-
Finally, I would note that the rule-making power of the Commonwealth’s highest
court did not suddenly appear with the Judicial Amendment:
When we say that an express constitutional grant of
rule-making power is unnecessary we do not mean that the
rule-making power does not flow from that instrument. The
fountain source of that power is in the act of division of
powers among the three branches of the government (158
A.L.R. 707) and the grant of judicial power to the courts by
the constitution carries with it, as a necessary incident, the
right to make that power effective in the administration of
justice.23
While the predecessor to this Court recognized its rule-making power, it did not, under
the guise of that power, arrogate to itself the authority to determine the eligibility of
circuit clerks. Our predecessor Court recognized that the Constitution delegated such
authority to circuit and court of appeals judges, and we should do no less.
I believe that authority to determine Donna Pelphrey’s qualifications lies with the
Morgan Circuit Judge from whom Pelphrey sought certification.
I concur in the result
reached by the majority opinion because I believe Kentucky Constitution 5 100 gives a
circuit judge the power to order this reexamination. While I dispute the constitutionality
of SCR 1.060’s requirement that an applicant receive a given passing grade on the
AOC examination before the circuit judge may certify his or her eligibility, I believe a
circuit judge as the appointing authority may, in his or her discretion, and pursuant to
the supervisory powers granted by Kentucky Constitution § 100, choose to require an
applicant to take the AOC examination before certifying eligibility.
I would declare SCR
1.060 unconstitutional in as much as it adds a mandatory requirement to the
constitutional eligibility procedures outlined in Kentucky Constitution 5 100.
23Craft v. Commonwealth., KY., 343 S.W.2d 150, 151 (1961).
-8-
RENDERED: APRIL 26,200l
TO BE PUBLISHED
2001 -SC-0064-OA
PETITIONER
DARBY FRANKLIN
ORIGINAL ACTION
V.
CICELY JARACZ LAMBERT, in her official
capacity as Director of the Administrative
Office of the Courts
RESPONDENT
AND
DONNA PELFREY
INTERVENING RESPONDENT
DISSENTING OPINION BY JUSTICE WINTERSHEIMER
I must respectfully dissent from the majority opinion because it
eviscerates the effectiveness of both the statute and the Supreme Court rule. It is
disappointing to realize that the lofty language and noble philosophy of Combs v. Huff,
Ky., 858 S.W.2d 160 (1993), has been abandoned.
I cannot agree with the interpretation fashioned by the majority that the
language “a special examination shall be” does not limit the number of special
examinations to a single successful test. The language is not ambiguous or unclear.
Only in the case where all the applicants failed, would a subsequent examination be
necessary.
KRS 30A.150 provides that the chief judge of a judicial circuit shall, within
30 days, appoint a qualified successor when a vacancy occurs in the office of circuit
clerk. SCR 1.060(4) provides a method of satisfying the statute and governs the
manner of replacement undertaken by the circuit judge.
Clearly, the authorization of multiple examinations is an absurdity as
stated in the Huff. supra, opinion. Any deviation from that standard is a retreat from the
high principles expressed in that case and embodied in the Supreme Court rule. Once
a person has passed the examination, and is the only successful applicant, the
examination process is complete. To hold otherwise is to defeat the purpose of the
examination in the first place.
The public and the aspirants for the circuit clerk position will surely lose
confidence in the fairness and purpose of the examination if we permit continuing
testing even after at least one applicant has successfully completed the test. This
should not be a system where an applicant can continue to test until they pass. There
can be no rational justification for allowing candidates for a vacancy to be tested more
than once. The rule refers to a special examination in the singular.
Graves, J., joins this dissent.
-2-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
