Fletcher v. Wilson

• Citation: 495 S.W.2d 787
• Parties: S. H. FLETCHER and Joe Jennette, Appellants, v. Milton WILSON et al., Appellees.
• Decision Date: 01 June 1973
• Court: United States State Supreme Court (Kentucky)

Page 787

495 S.W.2d 787

S. H. FLETCHER and Joe Jennette, Appellants, v. Milton WILSON et al., Appellees.

Court of Appeals of Kentucky.

June 1, 1973.

Harry B. Miller, Jr., Miller, Griffin & Marks, Lexington, for appellants.

Foster Ockerman, Martin, Ockerman & Brabant, C. Gibson Downing, Stoll, Keenon & Park, Lexington, for appellees.

CULLEN, Commissioner.

S. H. Fletcher, and Joe Jennette, alleging themselves to be 'citizens, taxpayers, duly registered voters and duly qualified electors of the Democratic Party in Jessamine County, Kentucky' (Fletcher residing in Magisterial District No. 4 and Jennette in Magisterial District No. 5), brought suit in the Jessamine Circuit Court against a candidate for the Democratic nomination, in the primary election to be held on May 29, 1973, for the office of county judge, against four candidates for the Democratic nomination in that primary for the office of magistrate (one for District No. 2, two for District No. 4, and one for District No. 5), and against the county court clerk. The complaint alleged various deficiencies in the notification and declaration papers of the candidates, such as failure to designate the office sought, omission of addresses in the body of the declaration or in the electors' affidavit, failure of the electors' affidavit to certify that the candidate is qualified for the office, and failure to have the declaration or the electors' affidavit subscribed and sworn to. The relief sought was that each defendant candidate be declared not qualified to have his name placed on the primary ballot, and that the defendant clerk be enjoined from placing their names on the ballot.

The defendants moved to dismiss the complaint on the ground that the plaintiffs, not being candidates, had no standing to maintain the action. That motion was sustained and an order was entered dismissing the complaint. The plaintiffs are appealing here from that order.

The theory on which the complaint was dismissed was thus expressed in the order:

'it further appearing to the Court that the plaintiffs herein are not candidates in the Primary Election to be held in Jessamine County, Kentucky on May 29, 1973, for any of the offices mentioned in the complaint, and that they therefore do not have standing to bring and maintain the within styled action * * *'

It appears that the circuit court, and the attorneys for both sides, were under the impression, as stated in the brief for one group of the appellees, that there is a 'long line of cases holding that citizens, taxpayers and electors * * * (have no) standing to maintain an action to enjoin the Clerk from placing the name of a candidate upon the ballot upon the ground that his * * * (declaration) papers are defective,' and that there are 'no cases decided in Kentucky under which citizens, taxpayers or voters have been held to have standing to maintain an action to enjoin the placing of a candidate's name on a primary ballot, or to otherwise question his qualifications for office.' The truth is, however, that the only Kentucky cases that have involved the direct question of the right of a voter to bring an action to control the placing of a candidate's name on the primary ballot have upheld that right, and there are no cases denying the right.

The first case to reach this court, after the enactment in 1912 of the primary election law, was Hager v. Robinson (1913), 154 Ky. 489, 157 S.W. 1138. There, the county court clerk had refused to put on the primary ballot the name of E. W. Robinson as a candidate for the Republican nomination for assessor, because Robinson's petition failed to state that he was affiliated with the Republican Party and had supported its nominees at the previous regular election. Robinson brought proceedings under Section 27 of the Primary Election Law (subsequently compiled as KRS 119.170) to compel the clerk to put his name on the ballot. Several voters, who were supporters of Robinson, brought a separate action, for an order of mandamus compelling the clerk to put Robinson's name on the ballot. Relief was denied in both actions, and appeals were sought to this court. It was held that Robinson had no right of appeal, because Section 27 of the Primary Election Law, under which he had brought his proceeding, expressly denied any right of appeal. However, this court held that the voter-plaintiffs' action was not under Section 27; that they had the right to bring such an action and the right to appeal from an adverse decision. The court said:

'The right of appellees Jas. W. Turner and others to maintain this action is stronger than that of either of the plaintiffs in the cases cited. They are not only qualified voters and members of the political party of which Robinson seeks to be made the nominee at the approaching primary election, but they actually assisted in his attempt to get his name upon the ballot by tendering to the clerk, in support of his right to do so, the petition required by section 6 of the Primary Act, in doing which they were endeavoring to perform a duty they owed to their party and to the public as well. It can well be said, therefore, that the rejection of their petition and that of their candidate by the clerk, if without legal cause, as alleged, constituted a violation of their personal rights, and at the same time prevented them from performing a duty which they owed to their party and to the state of which they are citizens.'

The holding in Hager, as concerns Section 27 of the Primary Election Law, was in effect that Section 27 was the exclusive remedy for candidates to keep an opposing candidate's name off the primary ballot, and it was a remedy exclusively for candidates, but it did not preclude an independent action by a voter. ¹

In Gardner v. Ray (1913), 154 Ky. 509, 157 S.W. 1147, the court made the same holding as in Hager.

Sixteen years later, in Schardein v. Harrison (1929) 230 Ky. 1, 18 S.W.2d 316, a voter brought a suit under the Declaratory Judgment Act to prevent the placing on the primary election ballot of the name of a candidate for the Republican nomination for mayor of Louisville, on the ground that the candidate was ineligible for the office. Upholding the right of the voter to maintain the suit, this court said:

'A preliminary question is raised as to appellant's right to maintain this appeal, but it is without merit. True, actions upon the part of candidates relating to the preparation of ballots in primary elections are restricted to the circuit court, which in relation thereto is made the court of last resort. See Section 1550--27, Ky. Statutes. But the provisions of that section do not abridge the right of voters and taxpayers to maintain such actions. See Hager v. Robinson, 154 Ky. (489) 495, 157 S.W. 1138. A right that has since been enlarged under the comprehensive provisions of the Declaratory Judgment Act, section 639a of the Civil Code.'

It is true that in Little v. Bogie (1945), 300 Ky. 668, 190 S.W.2d 26, Schardein was overruled to the extent that it conflicted with other cases cited in Little, but it is apparent that this action by the court was based on a complete misconception of the holding in Schardein. In Little, the Democratic nominee brought suit, after the primary, to enjoin the printing of the Republican nominee's name of the ballot for the regular election, on the ground that the latter was not eligible for the office. The court said:

'At the outset, we are confronted with the question of appellee's right to maintain the action. This question has been before the Court on numerous occasions; and, with one exception, Schardein v. Harrison, 230 Ky. 1, 18 S.W.2d 316, we have held that a nominee of one political party has no right, before the general election, to question the certificate of nomination of his opponent, where the notification, declaration, and certificate of nomination are valid on their faces. Wilson v. Tye, 122 Ky. 508, 92 S.W. 295, 29 Ky.Law Rep. 71, and Id., 126 Ky. 34; 102 S.W. 856, 31 Ky.Law Rep. 491; Hardin v. Horn, 184 Ky. 548, 212 S.W. 573; Morgan v. Adams, 250 Ky. 441, 63 S.W.2d 479; Hettel v. Furste, Clerk, 260 Ky. 844, 86 S.W.2d 1018; and Wooton v. Smith, 288 Ky. 48, 155 S.W.2d 466. * * *'

The cases cited as being contrary to Schardein all dealt with an attempt to question a certificate of nomination, after the primary. As hereinabove noted, Schardein involved a suit before the primary, to keep a candidate's name off the primary ballot. For reasons to be stated at a later point in this opinion, we think there is no conflict between Schardein and the other cases cited in Little, and there was no occasion to overrule Schardein to any extent.

Hager, Gardner and Schardein are the only Kentucky cases involving the direct issue of a voter's right to bring an action to control the placing of a candidate's name on the primary ballot, and they all upheld the right. Schardein was not overruled except to the extent that it conflicted with the other cases cited in Little, and since it did not conflict with those cases on the specific point here under discussion, it continued to be authority on that point. Thus we find that all of the Kentucky cases on the point uphold the voter's right, rather than denying it.

The holdings in Hager, Gardner and Schardein are fully in accord with Stewart v. Burks (1964), Ky., 384 S.W.2d 316, where it was held that a voter could, by suit before the general election question the sufficiency of the nominating petition of a candidate whose nomination was by petition rather than through a primary suit before the general election, question board--see KRS 118.070). ² The court there said:

'* * * We believe the public interest in the subject matter is such that any voter * * * who would be affected, though not specially, has standing in court to question the sufficiency of the nominating petition involved in this case. * * *'

Also consistent are Stiglitz v. Schardein (1931), 239 Ky. 799, 40...