Heleringer v. Brown

Decision Date07 May 2003
Docket NumberNo. 2003-SC-0327-TG.,2003-SC-0327-TG.
Citation104 S.W.3d 397
PartiesRobert L. HELERINGER, Appellant, 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.
CourtUnited States State Supreme Court — District of Kentucky
Opinion and Order of the Court by Chief Justice LAMBERT.

This cause comes before the Court on transfer from the Court of Appeals.1 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.

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] 121A.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.2 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 121A.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 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. Wallbaum4 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 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. Ry. 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 Covington 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 defined6 as "1. Something that makes one ineligible;...

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