KY OAG 21-01 2021-03-16

Could a Kentucky circuit court clerk candidate appoint an election challenger?

Short answer: No. The Attorney General concluded that a candidate for circuit court clerk could not designate an election challenger under KRS 117.315(2). That statute let candidates running on an independent or nonpartisan basis (and judicial candidates for an 'office of the Court of Justice') appoint a challenger, but circuit clerk elections are partisan and governed by KRS Chapter 118, so a circuit clerk candidate was not within the statute.

Disclaimer: This is an official Kentucky Attorney General opinion. AG opinions are persuasive authority in Kentucky courts but are not binding precedent like a court ruling. This summary is for informational purposes only and is not legal advice. Consult a licensed Kentucky attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Plain-English summary

The Magoffin County Circuit Court Clerk asked whether, as a candidate for circuit court clerk, she could designate an election challenger (a person allowed to be present at a precinct and witness the conduct of an election) under KRS 117.315(2). That statute allowed certain candidates, including a "candidate for an office of the Court of Justice," to appoint a challenger, but it did not define what an "office of the Court of Justice" means.

The Attorney General concluded that the office of circuit court clerk is not an "office of the Court of Justice" for purposes of KRS 117.315(2), so a candidate for that office could not designate a challenger. The opinion read the statute as drawing a line between partisan and nonpartisan or independent candidates. KRS 117.315(2) let school board candidates, independent or nonpartisan city candidates, and Court of Justice candidates appoint their own challenger. Judicial races (Supreme Court justices, Court of Appeals judges, circuit, family, and district judges under KRS Chapter 118A) are nonpartisan. Circuit court clerk elections, by contrast, are partisan and governed by the general election provisions of KRS Chapter 118. The opinion also pointed out that the General Assembly added "candidate for an office of the Court of Justice" to KRS 117.315(2) in the same 1976 Act that created KRS Chapter 118A, so the phrase should carry the same meaning in both, namely the offices of judges and justices.

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

At the time of the opinion, KRS 117.315(1) and (3) let a party's local executive committee designate up to two challengers per precinct, while KRS 117.315(2) let "[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" designate one challenger per precinct in primary and regular elections. The opinion observed that the Kentucky Constitution creates the office of circuit court clerk (Ky. Const. § 97) and treats clerks as county officers (Ky. Const. § 100), while also placing them within the judicial department (Ky. Const. § 114(3); KRS 30A.010(2); KRS 30A.150). To resolve the meaning of "office of the Court of Justice," the opinion looked to KRS 118A.010(4) and the elective judicial offices listed in KRS Chapter 118A (justices, Court of Appeals judges, circuit, family, and district judges), which run on a nonpartisan basis, and contrasted them with circuit clerk elections governed by KRS Chapter 118 (including KRS 118.215(1)), which are partisan. Applying the in pari materia canon from Osborne v. Keeney and Lewis v. Jackson Energy Co-op. Corp., and noting that the phrase was added by 1976 Ky. Acts ch. 54 § 22 in the same legislation that codified KRS Chapter 118A, the opinion concluded the phrase carried the same meaning in both statutes.

For circuit court clerks and candidates at the time, the practical effect of the opinion was that a circuit clerk candidate fell outside KRS 117.315(2) and so could not appoint a challenger under that subsection. The opinion treated the clerk's second question (whether a challenger must be assigned to a specific precinct) as moot given that answer.

Citations and references

Constitution and statutes:
- Ky. Const. §§ 97, 100, 114(3)
- KRS 117.315(2); KRS 30A.010(2); KRS 30A.150
- KRS 118A.010(4); KRS Chapter 118; KRS 118.215(1)

Cases:
- Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012)
- Lewis v. Jackson Energy Co-op. Corp., 189 S.W.3d 87 (Ky. 2005)

Source

Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2021-01.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601
March 16, 2021
OAG 21-01
Subject: Whether under KRS 117.315(2) a candidate for circuit court clerk may designate a challenger to be present at and witness the holding of a primary or regular election.
Requested by: Tonya Arnett Ward, Magoffin County Circuit Court Clerk
Written by: Aaron J. Silletto, Assistant Attorney General
Syllabus: A candidate for circuit court clerk may not designate a challenger under KRS 117.315(2).

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.[2] Candidates for these judicial races run on a nonpartisan basis. See KRS 118A.060(8); KRS 118A.090(4).

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).

Daniel Cameron
ATTORNEY GENERAL
Aaron J. Silletto
Assistant Attorney General

[1] The clerk also asked whether a candidate designating a challenger under KRS 117.315(2) must specify a particular precinct for the challenger to witness an election. The Attorney General's opinion on the first question renders the second question moot. See 40 KAR 1:020 § 4.
[2] Moreover, another statute within the same Chapter, KRS 118A.140(1), requires the Secretary of State to keep a book titled "Register of Candidates for Nomination to Offices of the Court of Justice." The Secretary of State includes in that book the name and place of residence of only "candidate[s] for nomination to the office of justice or judge." The circuit court clerk is not one of the offices included among the "Offices of the Court of Justice" recorded in this book.