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