Heleringer v. Brown , 2003 Ky. LEXIS 97 ( 2003 )

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 fifing 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 Old-ham 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 hable 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 ac-knowledgement 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; esp., a bias or conflict of interest that prevents a judge or juror from impartially hearing a case, or that prevents a lawyer from representing a party.... 2. The act of making ineligible; the fact or condition of being ineligible.” Another definition⁷ of “disqualification” is “1. The act of disqualifying or the condition of being disqualified. 2. Something that disqualifies.” Under these definitions, and the “usual, ordinary, and everyday meaning,” it appears that disqualification can be a prevailing condition or circumstance or it can be a discrete act or event, depending on the context in which the term is used.⁸ By virtue of the statute and our decisions with respect to statutory construction, and by virtue of the definitions quoted hereinabove, we have no doubt that a judicial decision declaring a candidate not bona fide may be embraced in the meaning of “disqualification” where that term appears in a statute.

Despite our view that disqualification may result from a judicial act or may be a condition, there remains a question whether the Fletcher-Bates slate ever came into existence due to Bates’ lack of Kentucky residence. Under KRS 118.125, a slate of candidates must file notification and declaration papers with the Secretary of State. Upon filing, the Secretary of State “shall examine the notification and declaration form of each candidate to determine whether it is regular on its face.”⁹ Thereafter, when the order of appearance on the ballot has been determined, the Secretary of State must certify to county clerks the name, place of residence, and party affiliation of “each candidate or slate of candidates for each office....”¹⁰ From the foregoing, we conclude that Fletcher and Bates formed a slate upon certification by the Secretary of State. The Fletcher-Bates slate thus acquired a legal existence, albeit flawed, that continued until Bates was held not to be a bona fide candidate by the Oldham Circuit Court. Even then, however, Fletcher was not entitled to name a replacement for Bates. That entitlement accrued only upon certification by the Secretary of State that a vacancy existed because one of the three circumstances in KRS 121A.080(11) had been met. The Secretary of State so certified on March 31, 2003, and Fletcher named his new running mate a few days later.

A question has been presented and the Court has carefully considered the proper grammatical construction of the controlling provision. As it appears in KRS 121A.080(11), the statute states

If a vacancy occurs in a slate of candidates after the ballots are printed for the primary election, the remaining member of the slate may designate a replacement for the vacant candidate or change the composition of the slate and designate a running mate on forms filed with the registry prior to the primary election, but only following certification to the remaining candidate by the Secretary of State that a vacancy exists for a reason specified in this subsection. If a replacement for a vacant candidate is made after the ballots are printed for the primary election because of death, disqualification to hold the office sought, or severe disabling condition which arose after the slate formed a campaign committee, notices informing the voters of the change in the composition of the slate shall be posted at each precinct polling place.¹¹

Does the phrase “which arose after the slate formed a campaign committee” relate to each of the three identified circumstances or only to the last, “severe disabling condition”? It is an accepted rule of grammar that when a qualifying phrase follows two or more contingencies separated by commas, the qualifying phrase applies only to the immediately preceding contingency unless the qualifying phrase is itself preceded by a comma.¹² There is no comma between the words “condition” and “which” and the rule of grammar just stated imposes no time restriction on the occurrence of “death” or “disqualification to hold the office sought.” For a severe disabling condition to authorize replacement, the condition would have to arise after the slate formed a campaign committee, but no such restriction appears with respect to “death” or “disqualification to hold the office sought.”

Upon the issues discussed hereinabove, by virtue of the initial certification of the Fletcher-Bates slate and the subsequent certification by the Secretary of State of the vacancy, Fletcher was entitled to name a replacement running mate pursuant to KRS 121A.080(11).

Heleringer also contends that KRS 121A.080(11) violates Kentucky Constitution § 51 and is unconstitutional. If we accept this view, the “replacement” statute that Fletcher seeks to utilize would not exist and he would be without any basis upon which to replace Bates. The Franklin Circuit Court held that Heleringer’s Section 51 claim was without merit and we agree.

Kentucky Constitution § 51 provides:

No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be reenacted and published at length.

When the text of KRS 121A.080(11) was enacted in 1992, the title of the act was “An ACT relating to the regulation of the conduct and financing of elections.” The provisions of subsection (11) were not amended by subsequent enactments, and it thus appears that the question of whether it violates Kentucky Constitution § 51 stands or falls on the title of the 1992 Act.¹³ This text appears to have been germane to the 1992 Act, and it is not rendered unconstitutional merely because this provision of 1992 KyActs chapter 288, § 8, was placed in KRS 121A instead of KRS 118. Moreover, we do not believe that an Act dealing with both the conduct and financing of elections violates the Section 51 prohibition against multiple subjects. We have held:

If the subdivision or section is germane to the general subject, it should be held to be included in the general. It is not ordinarily objectionable that the title of the Act does not embrace or dispose of everything to which it relates, providing it is not entirely misleading and is fairly, reasonably and logically related to the scope and purpose of the Act.¹⁴

Since the “conduct” of elections and the “financing” of elections do not appear to be “dissimilar and discordant subjects,”¹⁵ the plurality prohibition of Section 51 is not violated by 1992 Ky.Acts chapter 288.

Finally, Fletcher urges this Court to liberally construe the statutes here under review “in favor of citizens whose right to vote they tend to restrict.”¹⁶ The idea of liberal construction in favor of broad voter participation is deeply embedded in Kentucky law. When statutory construction is uncertain, doubt should be resolved in favor of allowing the candidacy to continue. In Napier v. Roberts,¹⁷ a defeated primary election candidate ran in the general election as an independent. In response to the challenge, this Court said,

In conclusion it may be said that while it is the policy of the law to uphold and guarantee, as much as possible, fairness, honesty and purity in elections, it may be also considered a rule of equal public importance that the individual voter should not be deprived of the opportunity of choosing a public servant from among those who may seek the place, unless the plain or manifest purpose of the law demands it.¹⁸

Napier was followed in Greene v. Slush-er¹⁹ in support of the right of one to seek elective office under the “Law and Order Party” notwithstanding that no such party existed. A similar view appears in Queen-on v. Mimms,²⁰ and in Baker v. Marcum²¹ , we said:

From the nature of things the interpretation of election laws, designed by secret ballot to register the public will, must be along sound and reasonable lines, and not so ultra technical as either to defeat the will of the public or to place an unnecessary burden upon the electors.

These long-standing principles require this Court to resolve any doubt in favor of allowing the Fletcher candidacy to continue to prevent restriction of the rights of citizens to vote.

IT IS HEREBY ORDERED that Hel-eringer’s motion under KRS 118.176(4) to set aside the final judgment be and is hereby denied. The decision of the Franklin Circuit Court is affirmed.

JOHNSTONE, KELLER, STUMBO, and WINTERSHEIMER, JJ., concur.

STUMBO, J., files a separate concurring opinion in which JOHNSTONE, J., joins.

WINTERSHEIMER, J., also files a separate concurring opinion.

COOPER, J., concurs in result only and files a separate concurring opinion in which GRAVES, J., joins.

1 . CR 75.02.

2 . Mobley v. Armstrong, Ky., 978 S.W.2d 307, 310 (1998).

3 . "No candidate for Governor or Lieutenant Governor shall appear individually on the ballot for the nomination he is seeking.” KRS 118.127.

4 . Ky., 356 S.W.2d 247 (1962).

5 . Id. at 249.

6 . Black’s Law Dictionary, 485 (7th ed. 1999).

7 . The American Heritage Dictionary, 408 (2nd College ed. 1985).

8 . See, e.g., In re Mary Maguire, 57 Cal. 604, 605-06 (Cal.1881) (stating "It becomes, then, necessary to inquire in what sense the word “disqualified ”, is used in this section. It is presumed to be used in its natural and ordinary sense, unless there is something in the instrument which shows to the contrary.”) (emphasis in original).

9 . KRS 118.165(2).

10 . KRS 118.215(1).

11 . KRS 121A.080(11) (emphasis added).

12 . See Smith v. Commonwealth, Ky.App., 41 S.W.3d 458, 459-60 (2001) (holding "Each of the three prohibited behaviors is set off by commas; the conjunction or precedes the last offense. Thus, the activities are disjunctive and separate from one another. Furthermore, the participial phrase at the very end of the definition, "constituting a felony,” is not preceded by a comma — a grammatical fact that renders it restrictive in nature modifying only the noun (i.e., the criminal activity) immediately preceding it — vastly enlarging the scope of forbidden criminal activity to encompass far more than the marijuana use or gambling enterprises discussed above.”).

13 . See KRS 446.145.

14 . Miller v. Commonwealth ex rel. Harrodsburg, 300 Ky. 215, 187 S.W.2d 837, 838 (1945).

15 . Id.

16 . Greene v. Slusher, 300 Ky. 715, 190 S.W.2d 29, 32 (1945).

17 . 172 Ky. 227, 189 S.W. 206 (1916).

18 . Id., 189 S.W. at 209.

19 . Greene, 190 S.W.2d at 32.

20 . Ky„ 283 S.W.2d 380 (1955).

21 . 216 Ky. 210, 287 S.W. 696 (1926).