ROBERT L . HELERINGER V. JOHN Y . BROWN III 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 ; STATE BOARD OF ELECTIONS, COMMONWEALTH OF KENTUCKY ; KENTUCKY REGISTRY OF ELECTION FINANCE ; ERNIE FLETCHER ; and FRIENDS OF ERNIE FLETCHER
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2003-SC-0327-TG
S
ROBERT L. HELERINGER
y'APP
T
ON TRANSFER FROM THE COURT
NO . 2003-CA-0876
FRANKLIN CIRCUIT COURT NO. 03-CI-00370
V.
JOHN Y. BROWN III 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;
STATE BOARD OF ELECTIONS,
COMMONWEALTH OF KENTUCKY;
KENTUCKY REGISTRY OF ELECTION
FINANCE ; ERNIE FLETCHER; and
FRIENDS OF ERNIE FLETCHER
APPELLEES
OPINION AND ORDER OF THE COURT BY CHIEF JUSTICE LAMBERT
AFFIRMING
This cause comes before the Court on transfer from the Court of
Appeals .' Transfer was granted on April 30, 2003, and we heard oral argument on May
1 . The urgency of this matter is manifest as the primary election of the Republican
nominees for Governor and Lieutenant Governor will occur on May 20, 2003 . Despite
an abbreviated schedule, the parties have presented persuasive briefs and arguments,
and the Court has appropriately considered the case .
' CR 75 .02 .
This is a close case on the law and Heleringer has presented legal issues
worthy of this Court's time and attention. The facts and pre-trial proceedings are not in
material dispute. On December 3, 2002, Ernie Fletcher and Hunter Bates filed a
notification and declaration to form a slate for Governor and Lieutenant Governor
subject to the May 20, 2003, Republican primary . As part of that process, both stated
under oath that "we will not knowingly violate any election law or any law relating to
corrupt and fraudulent practice in campaigns or elections in this state, and if finally
elected we will qualify for our offices ." On December 23, 2002, Secretary of State John
Y . Brown, III, certified the candidacy of the Fletcher-Bates slate . The filing deadline of
January 28, 2003, as set forth in KRS 118 .165, passed without any change in the
Fletcher-Bates slate .
On March 11, 2003, an action was brought against Bates in the Oldham
Circuit Court seeking a declaration under KRS 118 .176 that Bates was not a bona fide
candidate for Lieutenant Governor for failure to meet the six year residency requirement
of Section 72 of the Kentucky Constitution . On March 26, 2003, the Oldham Circuit
Court held :
G . Hunter Bates is not a bona fide candidate for the office of
Lieutenant Governor of Kentucky . The name of G . Hunter
Bates shall be stricken from the written designation of the
election officers filed with the Kentucky Board of Elections .
This Order shall be certified to the Kentucky Board of
Elections .
No appeal was taken from that decision .
On March 28, 2003, a new action was brought by Robert L. Heleringer, a
registered voter and Republican candidate for Lieutenant Governor of Kentucky,
against Fletcher, the Secretary of State, the Registry of Election Finance, and the State
Board of Elections seeking to prevent Fletcher from naming a substitute for Bates, and
to remove Fletcher's name from the ballot . Thereafter, on April 1, 2003, the Franklin
Circuit Court held that under KRS 121A .080(11) :
Fletcher is allowed to designate a new name since Hunter
Bates is disqualified as a Candidate for Lieutenant Governor
on the Fletcher Slate by Order of the Oldham Circuit Court
entered March 26, 2003 . We interpret the order of the
Oldham Circuit Court to be a disqualification invoking the
privileges of [KRS] 121 A .080(11) .
Under date of March 31, 2003, the Secretary of State issued a
memorandum to Fletcher stating, in part, that:
Pursuant to KRS 121A .080(11), I hereby certify that a
vacancy exists in the "Ernie Fletcher-Hunter Bates"
gubernatorial slate that is seeking the Republican Party
nomination in the May 20, 2003, primary election . This
vacancy has arisen due to the March 26, 2003, Order of the
Oldham Circuit Court, Division II, in 03-CI-153, disqualifying
Mr. Hunter Bates for failing to meet the candidacy
requirements of Section 72 of the Kentucky Constitution .
On April 7, 2003, Fletcher filed forms naming a replacement for Bates .
After subsequent litigation in the Franklin Circuit Court and the Kentucky Court of
Appeals, Heleringer filed a motion on April 16, 2003, challenging the bona fides of
Fletcher under KRS 118 .176, and on April 18, 2003, the Franklin Circuit Court held that
Fletcher was a bona fide candidate and was entitled to designate a new running mate
under the provisions of KRS 121A .080(11) .
The overarching issue in this case is whether the final judgment of the
Oldham Circuit Court that "G . Hunter Bates is not a bona fide candidate for the office of
Lieutenant Governor of Kentucky" on the slate with Ernie Fletcher likewise disqualifies
Fletcher's candidacy for Governor. At the outset, we will not review the judgment of the
Oldham Circuit Court rendered on March 26, 2003, whereby Bates was determined not
to be a bona fide candidate . That judgment was rendered, was not appealed, and is
now final ; and whether Fletcher is entitled to replace Bates as his running mate may be
affected by Bates' lack of bona fides as a candidate . In our view, the controlling issue
is whether Bates was disqualified within the meaning of KRS 121A .080(11) and can be
replaced, or whether the Fletcher-Bates slate was so fundamentally flawed as to render
it a legal nullity.
A persuasive argument in support of Heleringer's contention that Fletcher
should be denied a right to name a replacement running mate, thereby invalidating his
candidacy,3 is that Section 70 of the Constitution of Kentucky, KRS 118.127, and KRS
118 .125(2)(b) envision a unity of the slate whereby if one is found to lack bona fides as
a candidate, the other cannot obtain a replacement . According to this contention, Bates
was never qualified because he lacked the Kentucky Constitution § 72 residency and
therefore, he could not be disqualified within the meaning of KRS 121A.080(11) . As
such, a Fletcher-Bates slate never had a bona fide existence .
Under this view, a slate of candidates is analogous to marriage partners
and business partners, and the language of the Kentucky Constitution § 70, "elected
jointly", and various statutes tend to support the idea that a flawed union is no union,
and that one candidate is liable for the acts or omissions of the other. The analogy is
weakened, however, upon recognition that KRS 121 A .080(11) expressly provides for
replacement in the event of "death, disqualification to hold the office sought, or severe
disabling condition which arose after the slate formed a campaign committee . . . ." The
concept of a joint candidacy is further weakened by the general acknowledgement that
Z Mobley v. Armstrong , Ky., 978 S .W .2d 307, 310 (1998) .
3 "No candidate for Governor or Lieutenant Governor shall appear individually on the
ballot for the nomination he is seeking ." KRS 118 .127.
a candidate could bring about his or her own "disqualification" under the statute by
changing political parties, abandoning Kentucky citizenship or residency, or being
convicted of a felony. Thus, while the language of the Constitution and statutes support
the idea of a unitary candidacy, recognized circumstances allow a contrary result.
Nevertheless, we do not lightly dismiss Heleringer's contention that Bates was never
qualified and that as such, a qualified slate was not formed prior to the January 28,
2003, filing deadline .
The parties have debated the meaning of the term "disqualification" as it is
used in the statute. Heleringer maintains that the Oldham Circuit Court judgment
holding Bates not a bona fide candidate based on lack of Kentucky residency left
Fletcher unable to utilize KRS 121A.080(11) . Under this argument, one who was
"unqualified" could never suffer "disqualification ." Fletcher maintains, however, that any
slate complying with KRS 118.125 is a presumptively qualified slate and so remains
until a member is disqualified ; and if the disqualification occurs after the campaign
committee was formed, there is no question that the vacancy can be filled . The case
thus turns on the meaning of "disqualification ."
We are required by KRS 446.080(4) to construe words and phrases
"according to the common and approved usage of language." One of this Court's most
persuasive decisions on statutory construction is Gateway Construction Company v.
Wallbaum 4 in which the rule was stated as follows :
The best way in most cases to ascertain such intent or to
determine the meaning of a statute is to look to the language
used, but no intention must be read into the statute not
justified by the language . Bohannon v. City of Louisville, 193
Ky. 276, 235 S .W. 750 . The primary rule is to ascertain the
intention from the words employed in enacting the statute
4 Ky ., 356 S .W .2d 247 (1962).
and not to guess what the Legislature may have intended
but did not express. Lewis v. Creasey Corporation , 198 Ky .
409, 248 S .W . 1046. Resort must be had first to the words,
which are decisive if they are clear. City of Covington v.
Cincinnati C. & R .R . Co. , 144 Ky. 646,139 S.W . 854;
Goodpaster v. United States Mortgage Bond Co . , 174 Ky.
284, 192 S.W. 35 ; Western Kentucky Coal Company v. Nall
& Bailey , 228 Ky. 76, 14 S .W .2d 400 ; City of Covin ty on v.
Sohio Petroleum Company, Ky., 279 S .W.2d 746. The
words of the statute are to be given their usual, ordinary, and
everyday meaning . Louisville Country Club, Inc . v . Gray,
D .C ., 178 F. Supp. 915 ; Thompson v. Bracken County , Ky.,
294 S .W.2d 943 . 5
"Disqualification" is defined 6 as "1 . Something that makes one ineligible;
esp ., a bias or conflict of interest that prevents a judge or juror from impartially hearing
a case, or that prevents a lawyer from representing a party . . . . 2 . The act of making
ineligible ; the fact or condition of being ineligible ." Another definition7 of
"disqualification" is "1 . The act of disqualifying or the condition of being disqualified . 2 .
Something that disqualifies ." Under these definitions, and the "usual, ordinary, and
everyday meaning," it appears that disqualification can be a prevailing condition or
circumstance or it can be a discrete act or event, depending on the context in which the
term is used . 8
By virtue of the statute and our decisions with respect to statutory
construction, and by virtue of the definitions quoted hereinabove, we have no doubt that
a judicial decision declaring a candidate not bona fide may be embraced in the meaning
of "disqualification" where that term appears in a statute .
5 _Id . at 249 .
6 BLACK'S LAW DICTIONARY, 485 (7th ed . 1999) .
College ed . 1985) .
8
605-06 (Cal . 1881)(stating "It becomes,
then, necessary to inquire in what sense the word "disqualified", is used in this section.
It is presumed to be used in its natural and ordinary sense, unless there is something in
the instrument which shows to the contrary .")(emphasis in original) .
THE AMERICAN HERITAGE DICTIONARY, 408 (2
See, e .g., In re Mary Maguire , 57 Cal . 604,
6
Despite our view that disqualification may result from a judicial act or may
be a condition, there remains a question whether the Fletcher-Bates slate ever came
into existence due to Bates' lack of Kentucky residence . Under KRS 118 .125, a slate of
candidates must file notification and declaration papers with the Secretary of State.
Upon filing, the Secretary of State "shall examine the notification and declaration form
of each candidate to determine whether it is regular on its face ."9 Thereafter, when the
order of appearance on the ballot has been determined, the Secretary of State must
certify to county clerks the name, place of residence, and party affiliation of "each
candidate or slate of candidates for each office . . . ."'° From the foregoing, we
conclude that Fletcher and Bates formed a slate upon certification by the Secretary of
State . The Fletcher-Bates slate thus acquired a legal existence, albeit flawed, that
continued until Bates was held not to be a bona fide candidate by the Oldham Circuit
Court. Even then, however, Fletcher was not entitled to name a replacement for Bates .
That entitlement accrued only upon certification by the Secretary of State that a
vacancy existed because one of the three circumstances in KRS 121A .080(11) had
been met. The Secretary of State so certified on March 31, 2003, and Fletcher named
his new running mate a few days later.
A question has been presented and the Court has carefully considered
the proper grammatical construction of the controlling provision . As it appears in KRS
121 A .080(11), the statute states
If a vacancy occurs in a slate of candidates after the ballots
are printed for the primary election, the remaining member
of the slate may designate a replacement for the vacant
candidate or change the composition of the slate and
designate a running mate on forms filed with the registry
9 KRS 118 .165(2) .
" KRS 118 .215(1).
prior to the primary election, but only following certification to
the remaining candidate by the Secretary of State that a
vacancy exists for a reason specified in this subsection . If a
replacement for a vacant candidate is made after the ballots
are printed for the primary election because of death,
disqualification to hold the office sought, or severe disabling
condition which arose after the slate formed a campaign
committee, notices informing the voters of the change in the
composition of the slate shall be posted at each precinct
polling place."
Does the phrase "which arose after the slate formed a campaign
committee" relate to each of the three identified circumstances or only to the last,
"severe disabling condition"? It is an accepted rule of grammar that when a qualifying
phrase follows two or more contingencies separated by commas, the qualifying phrase
applies only to the immediately preceding contingency unless the qualifying phrase is
itself preceded by a comma .
12
There is no comma between the words "condition" and
"which" and the rule of grammar just stated imposes no time restriction on the
occurrence of "death" or "disqualification to hold the office sought." For a severe
disabling condition to authorize replacement, the condition would have to arise after the
slate formed a campaign committee, but no such restriction appears with respect to
"death" or "disqualification to hold the office sought."
Upon the issues discussed hereinabove, by virtue of the initial certification
of the Fletcher-Bates slate and the subsequent certification by the Secretary of State of
KRS 121A.080(11)(emphasis added).
See Smith v. Commonwealth , Ky.App ., 41 S .W.3d 458, 459-60 (2001)(holding "Each
of the three prohibited behaviors is set off by commas ; the conjunction or precedes the
last offense . Thus, the activities are disjunctive and separate from one another .
Furthermore, the participial phrase at the very end of the definition, "constituting a
felony," is not preceded by a comma -- a grammatical fact that renders it restrictive in
nature modifying only the noun (i.e., the criminal activity) immediately preceding it -vastly enlarging the scope of forbidden criminal activity to encompass far more than the
marijuana use or gambling enterprises discussed above .").
12
the vacancy, Fletcher was entitled to name a replacement running mate pursuant to
KRS 121A .080(11) .
Heleringer also contends that KRS 121A.080(11) violates Kentucky
Constitution § 51 and is unconstitutional . If we accept this view, the "replacement"
statute that Fletcher seeks to utilize would not exist and he would be without any basis
upon which to replace Bates . The Franklin Circuit Court held that Heleringer's Section
51 claim was without merit and we agree .
Kentucky Constitution § 51 provides :
No law enacted by the General Assembly shall relate to
more than one subject, and that shall be expressed in the
title, and no law shall be revised, amended, or the provisions
thereof extended or conferred by reference to its title only,
but so much thereof as is revised, amended, extended or
conferred, shall be reenacted and published at length .
When the text of KRS 121 A.080(11) was enacted in 1992, the title of the act was "An
ACT relating to the regulation of the conduct and financing of elections." The provisions
of subsection (11) were not amended by subsequent enactments, and it thus appears
that the question of whether it violates Kentucky Constitution § 51 stands or falls on the
title of the 1992 Act. 13 This text appears to have been germane to the 1992 Act, and it
is not rendered unconstitutional merely because this provision of 1992 Ky. Acts chapter
288, § 8, was placed in KRS 121A instead of KRS 118 . Moreover, we do not believe
that an Act dealing with both the conduct and financing of elections violates the Section
51 prohibition against multiple subjects . We have held :
If the subdivision or section is germane to the general
subject, it should be held to be included in the general . It is
not ordinarily objectionable that the title of the Act does not
embrace or dispose of everything to which it relates,
13
See KRS 446 .145 .
providing it is not entirely misleading and is fairly, reasonably
and logically related to the scope and purpose of the Act. 14
Since the "conduct" of elections and the "financing" of elections do not appear to be
"dissimilar and discordant subjects, "15 the plurality prohibition of Section 51 is not
violated by 1992 Ky. Acts chapter 288 .
Finally, Fletcher urges this Court to liberally construe the statutes here
under review "in favor of citizens whose right to vote they tend to restrict . "16 The idea of
liberal construction in favor of broad voter participation is deeply embedded in Kentucky
law. When statutory construction is uncertain, doubt should be resolved in favor of
allowing the candidacy to continue . In Napier v. Roberts, 17 a defeated primary election
candidate ran in the general election as an independent . In response to the challenge,
this Court said,
In conclusion it may be said that while it is the policy of the
law to uphold and guarantee, as much as possible, fairness,
honesty and purity in elections, it may be also considered a
rule of equal public importance that the individual voter
should not be deprived of the opportunity of choosing a
public servant from among those who may seek the place,
unless the plain or manifest purpose of the law demands it. 18
Napier was followed in Greene v. Slusherl9 in support of the right of one to seek
elective office under the "Law and Order Party" notwithstanding that no such party
existed. A similar view appears in Queenan v. Mimms ,2° and in Baker v. Marcu M21, we
said :
14
Miller v. Commonwealth ex rel. Harrodsburg , 300 Ky. 215,187 S.W .2d 837, 838
1945) .
5 _Id .
16
Greene v. Slusher, 300 Ky. 715, 190 S .W .2d 29, 32 (1945).
17
172 Ky. 227, 189 S .W . 206 (1916).
_Id ., 189 S.W . at 209.
18
19 Greene , 190 S .W .2d at 32 .
20
Ky., 283 S .W.2d 380 (1955).
21 216 Ky. 210, 287 S .W . 696 (1926) .
10
From the nature of things the interpretation of election laws,
designed by secret ballot to register the public will, must be
along sound and reasonable lines, and not so ultra technical
as either to defeat the will of the public or to place an
unnecessary burden upon the electors.
These long-standing principles require this Court to resolve any doubt in
favor of allowing the Fletcher candidacy to continue to prevent restriction of the rights of
citizens to vote .
IT IS HEREBY ORDERED that Heleringer's motion under KRS 118 .176(4)
to set aside the final judgment be and is hereby denied . The decision of the Franklin
Circuit Court is affirmed .
Lambert, C .J ., Johnstone, Keller, Stumbo, and Wintersheimer, JJ .,
concur. Stumbo, J ., files a separate concurring opinion in which Johnstone, J., joins.
Wintersheimer, J ., also files a separate concurring opinion . Cooper, J ., concurs in
result only and files a separate concurring opinion in which Graves, J ., joins .
ENTERED : May 7, 2003 .
COUNSEL FOR APPELLANT,
ROBERT L. HELERINGER :
Samuel Manly
LAW OFFICES OF SAMUEL MANLY
239 South 5th Street Suite 1606
Kentucky Home Life Building
Louisville, KY 40202-3208
C. Thomas Hectus
Randall S . Strause
HECTUS & STRAUSE PLLC
804 Stone Creek Parkway Suite 1
Louisville, KY 40223-5361
Michael G. Karem
HECTUS & STRAUSE PLLC
804 Stone Creek Parkway Suite 1
L. J . Hollenbach III
HOLLENBACH & ASSOCIATES
3836 Washington Square
Louisville, KY 40207-1923
Louisville, KY 40223-5361
COUNSEL FOR APPELLEES,
JOHN Y. BROWN 111 and STATE BOARD
OF ELECTIONS, COMMONWEALTH OF
KENTUCKY :
A. B . Chandler III
ATTORNEY GENERAL OF KENTUCKY
. Scott White
ASSISTANT ATTORNEY GENERAL
Kentucky State Capitol
700 Capitol Avenue, Room 152
Frankfort, KY 40601-3493
COUNSEL FOR APPELLEE,
KENTUCKY REGISTRY OF ELECTION
FINANCE :
Rosemary Center
Jennifer B . Hans
Kentucky Registry of Election Finance
140 Walnut Street
Frankfort, KY 40601-3240
COUNSEL FOR APPELLEE,
ERNIE FLETCHER:
Bradford L . Cowgill
Garland Hale Barr IV
STITES & HARBISON, PLLC
Lexington Financial Center
250 West Main Street, Suite 2500
Lexington, KY 40507-1758
COUNSEL FOR APPELLEE,
FRIENDS OF ERNIE FLETCHER:
James E. Milliman
Jason P. Underwood
MIDDLETON & REUTLINGER
Brown & Williamson Tower
401 South 4th Street
Louisville, KY 40202-0442
TO BE PUBLISHED
,sixpuxct (gourf of
rttfuxkg
2003-SC-0327-TG
ROBERT L. HELERINGER
V.
APPELLANT
ON TRANSFER FROM THE COURT OF APPEALS
NO. 2003-CA-0876
FRANKLIN CIRCUIT COURT NO . 03-CI-00370
JOHN Y. BROWN III 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 ;
STATE BOARD OF ELECTIONS,
COMMONWEALTH OF KENTUCKY ;
KENTUCKY REGISTRY OF ELECTION
FINANCE ; ERNIE FLETCHER ; and
FRIENDS OF ERNIE FLETCHER
APPELLEES
CONCURRING OPINION BY JUSTICE STUMBO
I concur fully with the opinion by Chief Justice Lambert but write separately to
emphasize the point that to grant Appellant the relief he seeks would result in the
disenfranchisement of those who would have voted for the Fletcher slate.
In Bullock v. Carter , 405 U .S . 134, 92 S . Ct. 849, 31 L. Ed . 2d 92 (1972), the
United States Supreme Court struck down a candidate filing fee system due to the
barriers it created to assess to the primary ballot . The Court therein stated:
In approaching candidate restrictions, it is essential to
examine in a realistic light the extent and nature of their
impact on voters . . . .
[T]he rights of voters and the rights of candidates do not
lend themselves to neat separation ; laws that affect
candidates always had at least some theoretical, correlative
effect on voters .
Bullock , supra at 143-144 .
Realistically viewed, the situation here is this : remarkable efforts have been
made to gain political support by all of the candidates in the form of money spent on
advertising and other contact with voters ; the ballot order has been determined and
ballots printed ; and, absentee ballots have already been cast and the primary election
is a matter of days away. 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 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 .
In holding that the disqualified member of the Republican slate may be replaced,
this Court honors in practice that important principle .
Johnstone, J ., joins this concurring opinion .
TO BE PUBLISHED
,$ixp r~ntr Couti of ~rnfixrk~r
2003-SC-0327-TG
ROBERT L. HELERINGER
V.
APPELLANT
ON TRANSER FROM THE COURT OF APPEALS
NO. 2003-CA-0876
FRANKLIN CIRCUIT COURT NO . 03-CI-00370
JOHN Y. BROWN III 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;
STATE BOARD OF ELECTIONS,
COMMONWEALTH OF KENTUCKY ;
KENTUCKY REGISTRY OF ELECTION
FINANCE ; ERNIE FLETCHER; and
FRIENDS OF ERNIE FLETCHER
APPELLEES
CONCURRING OPINION BY JUSTICE WINTERSHEIMER
I concur in the result announced by the majority opinion because the decision of
the Franklin Circuit Judge was not clearly erroneous . It is an unquestioned fundamental
rule of appellate practice that the judgment of the trier of fact should be affirmed if it is
free of error. Findings of fact in support of a judgment should not be set aside unless
clearly erroneous with due regard being given to the opportunity of the trial judge to
consider the credibility of the witnesses. CR 52.01 . Obviously, the trial judge is in the
very best position to ascertain the credibility of those who testify before that judge .
Election contests or matters related to elections should be governed by the
standard of review of a civil action . Cf . Deaton v. Little , Ky., 452 S .W .2d 384 (1969).
The Supreme Court in its appellate capacity is bound by the findings of fact of the trial
judge unless there is clear error or an abuse of discretion . Cf. General Motors Corp. v.
Herald , Ky., 833 S .W.2d 804 (1992).
The crux of this case is whether candidate Fletcher conducted a sufficiently
extensive investigation into the residency of his Lieutenant Governor running mate.
The trial judge found that he had done so and no reversible error has been
demonstrated so as to produce a contrary result .
There is no doubt that the Lieutenant Governor candidate did not satisfy the
requirements of the law as to residency as initially determined by the Oldham Circuit
Judge . However, that is not dispositive of the issue here . The true question is whether
candidate Fletcher had a valid reason to accept the legal advice and statements of his
running mate and others . That question has already been resolved by the Franklin
Circuit Judge. There is no reason to overturn his decision .
I fully concur with the statements in the majority opinion which cite with approval
the observation of previous cases in regard to the proper approach to election law
disputes . I particularly agree with the philosophies expressed in part in Queenan v.
Mimms , Ky., 283 S .W .2d 380 (1955) ; Greene v. Slusher, 300 Ky. 715, 190 S .W.2d 29
(1945); Baker v. Marcum , 216 Ky. 210, 287 S .W . 696 (1926) and Napier v. Roberts ,
172 Ky. 227, 189 S .W . 206 (1916).
To paraphrase Marcum , supra , the interpretation of election laws must be along
reasonable lines and not so ultra-technical as to unnecessarily burden the voters .
Every effort should be put forward so as to allow the voters in any election, primary or
general, to fully and with reasonable intelligence exercise their right to vote .
TO BE PUBLISHED
,SUyrrME Courf of ~rnfurhv
2003-SC-0327-TG
ROBERT L. HELERINGER
V.
APPELLANT
ON TRANSFER FROM THE COURT OF APPEALS
NO. 2003-CA-0876
FRANKLIN CIRCUIT COURT NO. 03-CI-00370
JOHN Y . BROWN III 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;
STATE BOARD OF ELECTIONS,
COMMONWEALTH OF KENTUCKY;
KENTUCKY REGISTRY OF ELECTION
FINANCE ; ERNIE FLETCHER ; and
FRIENDS OF ERNIE FLETCHER
APPELLEES
CONCURRING OPINION BY JUSTICE COOPER
Fletcher and Bates filed their joint candidacy papers and formed their campaign
committee on December 3, 2002. On their candidacy papers, each swore that "if finally
elected, we will ualif for our offices ." KRS 118 .125(2)(b) (emphasis added). Since
they were required to run as a slate and neither could appear individually on the ballot
for the office he was seeking, KRS 118 .127, each effectively warranted that, if elected,
both would qualify for the respective offices they were seeking. Section 72 of the
Constitution of Kentucky provides in pertinent part:
The Governor and the Lieutenant Governor shall be at least thirty
years of age, and have been citizens and residents of Kentucky for at
least six years next preceding their election .
Thus, in order to qualify for the office of Lieutenant Governor, Bates must have
been a resident of Kentucky for at least six years next preceding November 4, 2003.
As of November 5, 1997, Bates was a resident of Alexandria, Virginia, and he remained
so until no earlier than February 2002 when he and his wife purchased a home in
Goshen, Kentucky. Shain v. Bates , 03-CI-153, Oldham Circuit Court, Ky., Div. II (March
26, 2003). Thus, from and after November 5, 1997, Bates was disqualified to hold the
office of Lieutenant Governor of Kentucky if elected on November 4, 2003. More
specifically, he was disqualified to hold that office when he and Fletcher filed their
candidacy papers and formed their campaign committee on December 3, 2002 .
The word "disqualification" has two recognized definitions :
1 . The act of disqualifying, or state of being disqualified ; want of
qualification ; incompetency ; disability; as, the disqualification of certain
men from holding office.
2 . That which disqualifies ; that which incapacitates or makes unfit;
as, conviction of a crime is a disqualification of a person for office ;
sickness is a disqualification for labor .
Webster's Revised Unabridged Dictionary (Micra, Inc. 1996, 1998) . These definitions
are lifted from Fletcher's brief which attributes significance to the order in which the
definitions are listed, i.e. , the first listed definition is preferred and the second listed
definition is only secondary . However, Merriam-Webster's Dictionary lists the
definitions in the reverse order. See Merriam-Webster Dictionary Online (visited May 7,
2003) < http ://www .m-w.com .html>. I conclude, as does the majority opinion, that the
definitions are of equal weight depending upon the context in which they are applied .
The judgment of the Oldham Circuit Court, supra, did not purport to "disqualify"
Bates but only declared that "Bates is not a bona fide candidate for the office of
Lieutenant Governor of Kentucky" and ordered his name stricken from the ballot .
Unlike the majority opinion, I attribute no significance to the fact that the Secretary of
State initially certified the Fletcher-Bates slate. KRS 118 .165(2) only requires that the
Secretary of State, prior to certification, "examine the notification and declaration form
of each candidate to determine whether it is regular on its face ." (Emphasis added .)
Clearly, the notification and declaration form filed by the Fletcher-Bates slate was
"regular on its face" and the Secretary of State was under no duty to go behind the form
to determine the accuracy of the information contained therein .' That is the duty of the
appropriate circuit court upon the filing of a challenge to the "bona fides" of a candidate
pursuant to KRS 118 .176 .
Bates's failure to appeal the judgment of the Oldham Circuit Court triggered the
language in KRS 118.127 that "No candidate for Governor . . . shall appear individually
'Similarly, the Secretary of State's opinion, expressed in its March 31, 2003
memorandum to Fletcher, that the "disqualification" occurred when the Oldham Circuit
Court issued its March 26, 2003, Order, is a mere opinion subject to legal challenge as
Heleringer has done in this case . The Secretary of State is charged only with certifying
that "a vacancy exists for a reason specified in this subsection ." KRS 121A .080(11) .
Thus, while the Secretary's finding that a vacancy exists by reason of disqualification is
necessary to the operation of subsection 11, the added opinion as to "when" the
disqualification occurred is mere surplusage . Therefore, unlike the majority, I attribute
no significance to the Secretary's opinion in determining this question of law.
on the ballot for the nomination he is seeking," and the viability of Fletcher's
gubernatorial candidacy thus depends upon whether he could, pursuant to KRS
121A .080(11), designate a replacement candidate to fill the vacancy created by Bates's
removal from the ballot . That statute provides in pertinent part:
If a vacancy occurs in a slate of candidates . . . because of death,
disqualification to hold the office sought, or severe disabling condition
which arose after the slate formed a campaign committee , the remaining
member of the slate may designate a replacement . . . .
(Emphasis added.)
Heleringer's primary argument is that the qualifying clause, "which arose after the
slate formed a campaign committee," applies to each contingency, i .e . , death,
disqualification, or severe disabling condition. Although the majority opinion addresses
this issue, it cannot, in fact, reach it because the majority concludes that Bates became
qualified when the slate was certified by the Secretary of State. Thus, according to the
majority, Bates did not become "disqualified" until he failed to appeal from the judgment
of the Oldham Circuit Court . While I believe Bates was disqualified before the slate
ever formed a campaign committee, I reach the same conclusion as the majority's
dictum, but not on the basis of the absence of a comma before the word "which ."
Punctuation marks are no part of an act. To determine the intent of the
law, the court, in construing a statute, will disregard the punctuation, or will
repunctuate, if that be necessary, in order to arrive at the natural meaning
of the words employed .
United States v. Shreveport Grain & Elevator Co. , 287 U .S . 77, 82-83, 53 S.Ct. 42, 44,
77 L.Ed . 175 (1932) (citations omitted) . While not taking issue with the majority's
citation to the Court of Appeals' conclusion in Smith v. Commonwealth , Ky. App., 41
S .W .3d 458, 459-60 (2001), that its holding was in accord with an established rule of
grammar, Smith , in fact, cited no authority for that proposition and I have found none in
the limited time and resources available to me today, e William C . Paxson, The New
.,
.g
American Guide to Punctuation (Signet 1996) ; William Strunk Jr. and E .B . White, The
Elements of Style (3d ed . McMillan 1979) ; and the six-hour time limit imposed for the
completion of this opinion .
Nevertheless, if the General Assembly had intended the qualifying clause to
apply to the contingency of disqualification, then it must also have intended it to apply to
the contingency of death, and that interpretation would be absurd . A campaign
committee cannot be formed until after the slate has complied with KRS 118 .125 and
KRS 118 .127, i .e. , filed its candidacy papers . See KRS 121 .170(1). While the
candidacy papers must be filed no later than 4 :00 p.m . on the last Tuesday in January
preceding the applicable primary election, there is no deadline for forming a campaign
committee . While it is possible, of course, that the death of a slate member could occur
after the filing of the slate's candidacy papers, I cannot envision a scenario where the
slate's campaign committee would be formed after the death of a slate member. Thus,
there would be no reason for the General Assembly to condition the filling of a vacancy
caused by death upon the death occurring after the formation of the slate's campaign
committee . And if the General Assembly did not intend for the qualifying clause to
apply to the death contingency, there is no reason to conclude that it meant for that
clause to apply to the disqualification contingency . Certainly, our policy of liberal
construction of statutes in favor of a candidate's qualifications, Greene v . Slusher, 300
Ky. 715, 190 S .W .2d 29, 32 (1945), alone precludes such a construction .
Thus, I conclude that (1) Bates was disqualified to hold the office of Lieutenant
Governor when the Fletcher-Bates slate filed its candidacy papers on December 3,
2002 ; (2) the fact of his disqualification triggered the provisions of the "vacancy" statute,
KRS 121A.080(11) ; and (3) Fletcher was entitled to fill the vacancy caused by the
disqualification even though Bates's disqualification occurred prior to the formation of
the slate's campaign committee.
Accordingly, I concur with the result reached in this case.
Graves, J ., joins this opinion .
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