LORI A. HOFFMAN MOTION FOR RELIEF UNDER KRS 118.176(4) v. LOUIS I. WATERMAN; BOBBIE HOLSCLAW, in her OF ELECTIONS; TREY GREYSON, in his official COMMONWEALTH OF KENTUCKY and CHAIRMAN OF THE STATE BOARD OF ELECTIONS OF THE COMMONWEALTH OF KENTUCKY; and DOLLY WISMAN BERRY
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RENDERED:
July 23, 2004, 10:00 a.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001231-I
LORI A. HOFFMAN
v.
MOVANT
MOTION FOR RELIEF UNDER KRS 118.176(4)
FROM JEFFERSON CIRCUIT COURT
HONORABLE F. KENNETH CONLIFFE, JUDGE
ACTION NO. 04-CI-004230
LOUIS I. WATERMAN; BOBBIE HOLSCLAW, in her
official capacities as JEFFERSON COUNTY CLERK
and CHAIRPERSON OF THE JEFFERSON COUNTY BOARD
OF ELECTIONS; TREY GREYSON, in his official
capacities as SECRETARY OF STATE OF THE
COMMONWEALTH OF KENTUCKY and CHAIRMAN OF
THE STATE BOARD OF ELECTIONS OF THE
COMMONWEALTH OF KENTUCKY; and DOLLY WISMAN
BERRY
RESPONDENTS
OPINION AND ORDER
DENYING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Lori A. Hoffman brings this motion to set aside
the June 15, 2004, Opinion and Order of the Jefferson Circuit
Court pursuant to Kentucky Revised Statutes (KRS) 118.176(4).
We deny the motion and affirm the circuit court.
Hoffman is a registered voter of the 30th Judicial
Circuit.
Hoffman commenced this action in the circuit court on
Monday, May 17, 2004, at 4:40 p.m., by filing a motion seeking
to disqualify Louis A. Waterman as a candidate for nomination to
the Office of Judge of the 30th Judicial Circuit, 9th Division.
The primary election was to commence at 6:00 a.m. on the
following day, Tuesday, May 18, 2004.
The circuit court’s order denying Hoffman’s motion and
dismissing the action was entered on June 15, 2004.
Pursuant to
KRS 118.176(4), on June 22, 2004, Hoffman filed this motion to
set aside the order of the circuit court.
The sole issue in this appeal centers upon whether
Waterman’s petition of nomination for the Office of Judge of the
30th Judicial Circuit, 9th Division, is fatally defective under
KRS 118A.060(2) and (3).
statute is thus required.
A thorough analysis of the applicable
Subsection (2) of KRS 118A.060 states
in part:
Each candidate for nomination shall file a
petition for nomination . . . . The petition
shall be sworn to before an officer
authorized to administer an oath by the
candidate and by not less than two (2)
registered voters from the district or
circuit from which he seeks nomination.
Subsection (3) states in part:
The petition for nomination shall be in the
form prescribed by the State Board of
Elections. The petition shall include a
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declaration sworn to by the candidate, that
he or she possesses all the constitutional
and statutory requirements of the office for
which the candidate has filed.
Subsection (2) clearly requires the petition to be
sworn to by the candidate and not less than two registered
voters.
Subsection (3) requires, by its plain language, the
candidate to swear that he meets the requirements for the
office.
We do not believe the statute should be interpreted as
requiring the registered voters to also swear that the candidate
meets the requirements of the office.
Such interpretation is
inconsistent with the language of subsection (3) and does not
reflect a liberal interpretation in favor of allowing the
candidate (Waterman) to continue on the ballot under these
circumstances.
See Heleringer v. Brown, Ky., 104 S.W.3d 397
(2003) (holding that election laws should be liberally
interpreted so as to allow the candidate to stand for election).
Rather, we interpret subsection (2) as merely requiring the
voters to swear that they are registered voters in that circuit
and interpret subsection (3) as requiring only the candidate to
swear that he meets the requirements of the office.
Additionally, we view subsection (2) as containing
both mandatory and directory provisions.
See Skaggs v. Fyffe,
266 Ky. 337, 98 S.W.2d 884 (1936) (holding that failure to
follow mandatory provision of statute renders the act void,
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whereas failure to follow directory provision does not).
We
believe the legislature clearly intended for at least two
registered voters to sign the petition and also intended that
the failure to do so would be fatal.
The reasoning behind such
a mandatory provision is to ensure that the voters who sign a
petition are eligible to vote for that candidate.
However, we
believe the provision requiring the voters to be sworn before an
officer authorized to administer an oath to be merely directory.
See Skaggs v. Fyffe, 98 S.W.2d 884 (recognizing the rule of
statutory interpretation that laws are to be liberally construed
so as to reach a substantially correct result and the court
should, to every reasonable extent, interpret such provisions as
directory rather than mandatory).
Indeed, such provision of
subsection (2) was designed to ensure the voters were registered
to vote for the candidate.1
Simply put, the provision merely
exists as a method of verifying the registration of the voters
in that circuit.
We view the rule of interpretation enunciated in
Varney v. Justice, 86 Ky. 596, 6 S.W. 457, 459 (1888) as
instructive:
In other words, if the directions given by
the statute to accomplish a given end are
1
We point out that KRS 118A.060 does not require the registered voter to
give the address of his or her residence. Likewise, the form prescribed by
the State Board of Elections does not require the resident address, but does
require an affirmative statement that he/she is a registered voter of the
circuit in which the candidate seeks nomination.
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violated, but the given end is in fact
accomplished, without affecting the real
merits of the case, then the statute is to
be regarded as directory merely.
See also, Arnett v. Sullivan, 279 Ky. 720, 132 S.W.2d 76 (1936);
Skaggs v. Fyffe, 98 S.W.2d 884.
As to KRS 118A.060, the
objective of subsection (2) is that at least two registered
voters sign the petition, and the method of ensuring this
objective is to swear to same before an officer authorized to
administer an oath.
In this case, the undisputed facts indicate the
registered voters who signed Waterman’s petition did not swear
before an officer authorized to administer an oath.
Additionally, the registered voters did not sign the petition in
the presence of such an officer.
However, each of the voters is
registered to vote in that circuit.
More importantly, each
voter subsequently swore to signing the petition and to being
registered to vote in the circuit where Waterman is a candidate.
As each voter is, in fact, registered to vote in the
circuit, we are of the opinion the petition complied with the
mandatory provision of KRS 118A.060(2) – that at least two
registered voters sign the petition.
We also conclude that the
failure of each voter to swear to the fact of being registered
and their failure to sign the petition in the presence of an
officer constitutes mere technical violations of a directory
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provision of KRS 118A.060(3).
We do not view the technical
violations of the directory provision of KRS 118A.060(2) to be
fatal to the petition.
See
Skaggs v. Fyffe, 98 S.W.2d 884.
As
such, we hold Waterman’s petition to be valid.
In reaching this decision, we are mindful that 12,303
voters in Jefferson County cast ballots in favor of Waterman in
the primary election.
To now remove Waterman from the ballot
for technical violations of KRS 118A.060 would deny the voters
of Jefferson County a choice in the general election.
In this
Commonwealth, there exists a strong public policy “in favor of
broad voter participation” in elections, thus requiring any
doubt in statutory interpretation to “be resolved in favor of
allowing the candidacy to continue.”
Heleringer v. Brown, 104
S.W.3d at 403.
Upon this point, Justice Stumbo’s concurring opinion
in Heleringer provides poignant elucidation:
To, at this point in the process, eliminate
a choice from consideration in the
Republican primary, would clearly have more
than a theoretical effect on the voters.
Their contributions, physical labor, even
their absentee ballot, if already cast,
would be rendered a nullity. To lose a vote
because your candidate is defeated is one
thing; to lose a vote because a candidacy is
voided due to technical reasons is another
entirely. The effect would be real and must
be acknowledged, just as our predecessor
court acknowledged the rights of the voters
in cases in which a candidacy has been
challenged. In Queenan v. Mimms, Ky., 283
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S.W.2d 380, 382 (1955), it was noted that:
"It is a fundamental principal that the
courts will construe election statutes
liberally in favor of the citizens whose
right to choose their public officers is
challenged. Greene v. Slusher, 300 Ky.,
715, 190 S.W.2d 29 (1945)." The right of
the qualified voter to cast an effective
vote is among our most precious freedoms.
Heleringer, 104 S.W.3d at 404-405.
For the foregoing reasons, we affirm the Opinion and
Order of the Jefferson Circuit Court holding Louis I. Waterman’s
Petition for Nomination VALID.
NOW THEREFORE be it ORDERED that Lori A. Hoffman’s
Motion Under KRS 118.176(4) To Set Aside Final Judgment and
Order of the Jefferson Circuit Court be and it is hereby DENIED.
ALL CONCUR.
ENTERED:__July 23, 2004
BRIEF FOR MOVANT:
Samuel Manly
Louisville, Kentucky
___/s/ __Jeff S. Taylor
JUDGE, COURT OF APPEALS
BRIEF FOR RESPONDENT LOUIS I.
WATERMAN:
Sheryl G. Snyder
Amy D. Cubbage
Frost Brown Todd LLC
Louisville, Kentucky
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BRIEF FOR
INTERVENOR/RESPONDENT DOLLY
WISMAN BERRY:
Teddy B. Gordon
Michael L. Boylan
Louisville, Kentucky
BRIEF FOR RESPONDENT TREY
GRAYSON:
Gregory D. Stumbo
Kentucky Attorney General
D. Brent Irvin
Assistant Attorney General
Frankfort, Kentucky
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