Did a Kentucky county clerk need a judge's qualification certificate before taking office after the Judicial Article?

Plain-English summary

A county judge/executive asked whether the county clerk needed a judicial qualification certificate under Section 100 of Kentucky's Constitution. The AG concluded in 1993 that the requirement no longer applied to county clerks because the Judicial Article had transferred court-clerk work to circuit clerks. It said Section 100's certification language applied to circuit court clerk candidates after that change. The AG could not settle the status of the particular officeholder because the affidavit and surrounding facts were unclear. It also discussed what would follow if a court instead held certification necessary: a certificate issued after election but before taking office could satisfy the timing rule it cited.

Currency note

This opinion was issued in 1993. 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.

Historical summary

County clerk candidates

The AG read the post-1975 Judicial Article as removing county clerks' court-clerk duties. In its view, the need for a judge's certification of a court clerk's qualifications therefore did not extend to the county clerk office. It invited judicial confirmation of that interpretation.

The disputed Magoffin County officeholder

The AG expressly declined to treat its opinion as dispositive of that person's status. It had not received the cited affidavit and lacked precise facts about any examination or certificate. Its alternative discussion of certificate timing was conditional on a determination that certification was still required.

Possible office-usurpation action

The opinion identified KRS 415.040 as making it the Commonwealth Attorney's duty, under certain circumstances, to bring an action against someone occupying a county office without entitlement. It did not declare this clerk's office vacant.

Common questions

Did Section 100 still require a judicial certificate for a county clerk candidate in the AG's view?

The AG said no. It reasoned that the Judicial Article had moved court-clerk duties from county clerks to circuit clerks, so the certification requirement concerned circuit court clerk candidates.

Did the opinion decide that the Magoffin County clerk was qualified or unqualified?

No. The AG said the affidavit and surrounding facts were too unclear for the opinion to resolve that particular situation.

If certification had been required, would a certificate obtained after election be too late?

The opinion said a certificate obtained before the person assumed office would satisfy the timing rule it cited, if a court determined the requirement applied.

Background and statutory framework

Section 100 of the Kentucky Constitution required judicial certification for a person eligible to the office of clerk. The AG read that language alongside the Judicial Article's Sections 114 and 124, which it said shifted court-clerk functions to circuit clerks and repealed conflicting older constitutional provisions to that extent. Its conditional timing analysis cited the Kirkpatrick decision; its discussion of a possible action against a county-office usurper cited KRS 415.040.

Citations and references

• Kentucky Constitution Sections 100, 114, and 124: certification and later judicial reorganization discussed in the opinion.
• KRS 415.040: potential action against a county-office usurper under specified circumstances.
• Kirkpatrick v. Brownfield, 97 Ky. 558, 31 S.W. 137 (1895): certificate timing if certification applies.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG93-014.htm

Original opinion text

TO BE PUBLISHED

OAG 93-14

February 22, 1993

Hon. Doris Barnett

County Judge/Executive

Magoffin County

P. O. Box 430

Salyersville, Kentucky 41465

Re: Whether One Elected as County Clerk Must, Before Assuming

Office, Have Certificate of Qualification Pursuant to

§100 of the Constitution of Kentucky, Related Questions

AGO Corr. No. 93-(O)-20.

Dear Judge Barnett:

By letter of January 4, 1993, you indicate that the Circuit Court Clerk has presented you with an affidavit that the County Clerk has not been examined by him as required by Section 100 of the Constitution of Kentucky.

You ask, in substance:

(1) Is the certificate of examination required by Section 100 necessary before taking office?

(2) If the certificate is necessary before taking office and an officer does not have it, or one is not acquired, what, if anything, is affected?

(3) If the effect of not having, or if applicable, acquiring, the certificate is that the office could be declared vacant, who would have the duty to make such declaration and what procedure is involved?

Section 100 of the Constitution of Kentucky provides, in part pertinent here:

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.

Factual Basis of Affidavit Not Clear

First, to the extent that your questions are posed regarding the affidavit of the Circuit Clerk, we do not know, from a legal perspective, what is meant by the statement in the affidavit of the Circuit Clerk that the County Clerk "has not been examined . . . as required by section 100 of the constitution." For example, what did the Circuit Clerk, in giving the affidavit you cite, understand to be the requirements of section 100 of the Constitution regarding examination of a candidate for county clerk? What are the precise facts surrounding the Circuit Clerk's statement in the affidavit? Was a certificate of qualification executed to one who now occupies the office, after the election, but before assumption of the office? A copy of the affidavit you mention did not accompany your letter to us, but even if it had, these questions as well as others might remain.

Because we do not know the precise facts involved, this opinion should not be taken as dispositive regarding a particular fact situation with which you may be concerned.

Given Constitutional Amendments, Judicial Certification of the

Qualifications of a Candidate for County Clerk is Not Required

In our view, judicial certification of the qualifications of a candidate for county court clerk (now sometimes referred to as the "county clerk") is no longer

required.

Amendments to Kentucky's Constitution, approved by the voters in 1975, which became effective on January 1, 1976, added a new section 114 to Kentucky's Constitution, as part of what was known as the "Judicial Article." That section had the effect of removing from the office of county court clerk (Constitution of Kentucky section 99), responsibilities as a clerk to a judicial court. At the time the constitution was written, what we now term the county court clerk or county clerk was the clerk of the lower judicial court. It thus made sense that judicial certification was provided for regarding the qualifications of a candidate to serve the judiciary. Now, however, the clerk of the circuit court (Constitution of Kentucky section 97) serves the judiciary as clerk in both the district court and the circuit court (Constitution of Kentucky section 114). Since the county court clerk no longer serves as a clerk to a judicial court, the constitutional requirement of judicial certification of the qualifications of one who is a candidate for the office of clerk is not applicable to a candidate for county court clerk (again, sometimes referred to as "county clerk"). "Clerk" as used in that part of section 100 calling for judicial certification of the qualifications of a candidate for that office, now refers to a candidate for clerk of the circuit court.

The view expressed above is reinforced by the new section 124 added to Kentucky's Constitution by the "Judicial Article" (above). As noted previously, section 114 effectively removes judicial court clerk responsibilities from the county court clerk, and vests those responsibilities with the clerks of the circuit court. Accordingly, there is no need for judicial certification of the qualifications of a candidate for county court clerk, as the county court clerk is not under the direct supervision of the judiciary. Section 124 provides, in substance pertinent here, that sections of the constitution in conflict with the judicial article are repealed to the extent of the conflict. Section 100 of the constitution,to the extent it imposes a responsibility upon the judiciary to certify the qualifications of a county court clerk, is in conflict with section 114. Section 100 of the Constitution of Kentucky thus is repealed to the extent of such conflict.

You might want to seek judicial confirmation of this view.

Certificate of Qualification Might Be Required Prior to

Assumption of Office.

Although we have indicated that judicial certification of the qualifications of a candidate for county clerk is not required, should it be determined that a judicial certificate of qualification is required of one who is a candidate for the office of county clerk, if a certificate of qualification was executed after the election, but prior to the County Clerk taking office, the rule of the court in Kirkpatrick v. Brownfield, 97 Ky. 558, 31 S.W. 137 (1895), applies. In that case, Kentucky's then highest court found that the words "eligible to the office," as used in section 100, where not modified by the additional words "at the time of election," referred to the time at which the office was to be first assumed. Thus, a certificate of qualification for the office of clerk of court would be recognized if obtained prior to assumption of office.

Commonwealth Attorney Can Pursue Removal of Usurper

If you believe that the person who occupies the office of County Clerk is not entitled to the office, and is thus an usurper of a county office, you might want to bring the matter to the attention of the Commonwealth Attorney.

KRS 415.040 makes it the duty of the Commonwealth Attorney to institute actions, under certain circumstances, against usurpers of county offices.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General

(502) 564-7600

GRG:par