Kentucky Advisory Opinions August 24, 1992: OAG 92-132 (August 24, 1992)

Kentucky Attorney General Opinions

1992.

OAG 92-132.

Dear Mr. Smith:

You have submitted the following question to the attorney general:

I am requesting the Attorney General's opinion concerning the City of Mayfield. A local option petition has been filed at the Graves Co. Clerk's Office and some of the names are dated 1988 and some are dated June, 1992. The petition was filed July 28, 1992. Our question is: is a signed signature in 1988 on this petition valid to count on a 1992 local option election?

This office receives numerous requests for information regarding petitions for local option elections. In almost every instance, the question is posed by a county judge/executive who requires a prompt, if not immediate, answer to a question raised by some irregularity in the petition. While this office has issued several opinions on the subject, we have never provided a single comprehensive opinion intended to answer most of the questions that repeatedly arise. Therefore we have prepared this opinion in an attempt to provide clerks and county judge/executives with the information they require in determining the sufficiency of these petitions.

What is the procedure for filing a local option petition?

KRS 242.020(1) says that the petition "shall be filed with the county clerk." Subsection 4 of the statute says, "After a petition for election has been filed, the county judge/executive shall make an order on the order book of the court directing an election to be held in that territory." Taken together these statutes mean that the petition is filed with the clerk, since the clerk is the official custodian of such records, and the clerk then delivers the petition to the county judge/executive. A petition that is delivered to the county judge/executive rather than the county clerk is not invalid for that reason, since it may be assumed that the county judge/executive will inform the clerk that the petition has been filed. Morgan v. Walker , 289 Ky. 92, 158 S.W.2d 5 (1941).

What are the duties of the county clerk upon the filing of a petition?

In a strict sense the only duty of the county clerk is to receive the petition and deliver it to the county judge/executive. However, if the county judge/executive requests the clerk to provide assistance in determining the validity of the petition, the clerk must comply with that request to the extent that the clerk may be able to provide pertinent information, such as voter registration records. OAG 91-174.

What are the duties of the county judge/executive upon the filing of a local option petition?

It is the duty of the county judge/executive to determine the sufficiency of the petition and to call an election if the petition is valid. OAG 66-190. However, the county judge/executive is under no duty to conduct an investigation; the petition has a presumption of regularity and, if the petition appears valid on its face, the county judge/executive may simply order an election, in which case the election is presumed valid and the burden of proving the invalidity of the petition is on the party filing a subsequent challenge. Hawkins v. Walton , 271 Ky. 487, 112 S.W.2d 661 (1938).

As a practical matter, the county judge/executive should enlist the cooperation of the county clerk to determine whether the petition bears valid signatures of a sufficient number of registered voters. Additionally the county judge/executive may conduct a hearing or obtain evidence from other sources, although he may not issue a subpoena compelling the attendance of witnesses. OAG 91-204; OAG 80-495.

What if some petitioners fail to provide a complete address?

In Skaggs v. Fyffe , 266 Ky. 337, 98 S.W.2d 884 (1936), the court held that the provisions of the local option statute requiring petitioners to state their address and date of signing were "directory" rather than mandatory, and therefore the names of petitioners should be counted even if they omitted the address or date entirely. (The term "directory" is not often used in modern legal writing; in current usage one would state that the provisions of the statute do not require strict compliance.) The court reasoned as follows:

The provisions of the local option law in the particular under examination can be, as to the address, only for the purpose of readily or conveniently identifying the petitioners as being of the class having the right to apply for the holding of the election, and, as to the date on which signed, only to show that it was done when they were so qualified, or, perhaps, to disclose that it was signed before the filing of the petition. That would seem to be merely to afford convenience in ascertaining the real or substantial thing, to wit, the qualification. That is of the essence, hence mandatory. A statement of the particular place of residence is not.

Id . at 887. What is important is the petitioner's actual voting residence, not the accuracy of the address, or lack thereof, given in the petition. If a petitioner actually lives in the territory to be affected by the election, and is a registered voter in that territory, he may sign the petition and the signature must be counted even though the petition inaccurately states his address or even omits the address entirely. The proper inquiry is whether the petitioner "may reasonably be located" rather than whether the petitioner has accurately stated his address. Ausmus v. Slusher , Ky., 382 S.W.2d 395 (1964).

From this observation one may conclude that the county judge/executive and the county clerk, in order to insure that all permissible signatures are counted, should not rely completely on the information contained in the petition but rather should check the voter registration records of each petitioner to determine whether the petitioner is a registered voter in the territory. The address given on the petition may be considered merely an aid to the clerk in locating the petitioner's voter registration card. If the card can be found, the signature must be counted even though the address is missing from the petition. Miller v. Murray , 600 P.2d 1174 (Mont. 1979).

In reaching this conclusion we are aware that at the time Skaggs was decided the statute called for the post office address, rather than for the residence address that the current statute requires. We do not consider that this amendment to the statute materially affects the authority of the Skaggs decision.

What if a petitioner's address as shown on the petition is in a different precinct from the one in which he is registered to vote?

A registered voter who has not been purged by the county board of elections is prima facie eligible to vote; consequently, as long as the voter is registered in a precinct that lies within the territory to be affected by the election, the signature must be counted. OAG 80-466; Sajo v. Paulus , 688 P.2d 367 (Or. 1984).

Must a petitioner be a properly registered voter at the time the petition is filed, or at the time the petition is signed?

This office has in the past stated that the date of signing is immaterial, and that a petitioner's signature must be counted if the petitioner is registered at the time the petition is filed. We now conclude that that statement is incorrect and we therefore overrule OAG 85-60 and OAG 63-936 to the extent that they conflict with this opinion.

Our decision in OAG 85-60 relied on Hall v. Reid , Ky., 305 S.W.2d 923 (1957). That case dealt with a nominating petition rather than a local option petition. The court held, "The qualifications of the petitioners are to be judged as of the day the petition was filed with the county court clerk." Id . at 924. Our opinion in OAG 85-60 rather equivocally pointed out that the local option statute specifically requires the petitioner to state the date on which the petition is signed and concluded, "However, we find no court decision involving this requirement under KRS 242.020 and therefore believe that we must follow the general rule as announced in the Hall case."

Our current research discloses that the Hall decision relied entirely on Stieritz v. Kaufman , 314 Ky. 10, 234 S.W.2d 145 (1950), which was not a local option case and which in turn relied entirely on McAuliffe v. Helm , 157 Ky. 626, 163 S.W. 1091 (1914), a local option case that confronted this issue squarely. The court considered this question:

Are [a petitioner's] qualifications to be looked at as of the time he signs the petition, or at the time the petition is filed, or at the time the order is entered calling the election?

and gave this answer:

[W]e have concluded that the qualifications of a petitioner must be judged as of the day the petition is filed in county court . . . .

Id . at 1093. Thus there would appear to be a clear line of authority holding that the general rule regarding a petitioner's qualifications (that is, that he must be qualified at the time the petition is filed; 25 AmJur2d, Elections 25) applies to local option petitions.

Our earlier opinions failed to consider, however, that Prohibition resulted in the repeal of the local option statute construed in McAuliffe . Following the 1933 repeal of the Prohibition amendment the General Assembly re-enacted certain provisions of the local option laws but made substantial changes to KS 2544, the statute dealing with petitions. In 1936 there first appeared the requirement that the petitioner disclose "the correct date upon which his name was signed." Acts 1936, c. 1, 3.

We thus find that Skaggs v. Fyffe is the only reported decision that considers the effect of the statute's requirement that the petition show the date of signing; and, as we mentioned earlier, the court there said that the purpose of this provision is "only to show that it was done when they were so qualified"; that is to say, to show that the petition was signed while the petitioner was a qualified voter. Our statement in earlier opinions that the date of signing is completely immaterial was therefore wrong; the date of signing is of extreme importance, for if the petitioner signs before he becomes registered to vote in the territory, the signature must be disallowed.

This conclusion does not conflict with the general rule, positively established in Hall v. Reid and other cases, that a petitioner must be qualified at the time the petition is filed. Rather, we believe that KRS 242.020, in conjunction with the general law on petitions, requires that a petitioner be a qualified voter both at the time the petition is signed and at the time it is filed.

What if the petitioner filled out a voter registration card on the same day he signed the petition?

A voter is not registered until the county clerk actually makes the entry in the voter registration roll. KRS 116.045(5). If the petitioner's registration had not been recorded by the clerk when the petition was signed, the signature cannot be counted.

What if some petitioners fail to show the date of signing?

As we indicated above, Skaggs v. Fyffe holds that the omission of the date of signing does not necessarily mean that a signature should not be counted; rather a signature should be counted if it can be determined that the petitioner was a qualified voter at the time of signing. The county judge/executive, with the assistance of the county clerk, should consult voter registration records to determine whether the petitioner was a qualified voter during the time period when the petition was in circulation. If, for example, the records show that the petitioner has been continuously registered for several years, it may be presumed that the voter was registered when the petition was signed and the signature should be counted. If, on the other hand, the records show that the petitioner registered to vote while the petition was in circulation, then it cannot be presumed that the petitioner was registered at the time of signing and the signature should not be counted.

What if some dates on a petition show that the petition was signed years before it was filed?

This is a complex question requiring careful judgment on the part of the county judge/executive.

The first point to be considered is whether the petition as originally signed called for an election to be held on a certain date. (The petition may, but need not, request the election to be held on a specified date.) If it did, then the signature may not be used to request an election on a different date. Morgan v. Walker , 289 Ky. 92, 158 S.W.2d5 (1941).

The second point of inquiry is whether the old petition called for an election in precisely the same territory as the new petition. If the petitions differ in this respect, then the old signatures should not be counted.

The third point of inquiry is whether the petitioner is still a qualified voter in the territory at the time the petition is filed. If the petitioner has died, moved out of the territory, or failed to remain properly registered then the signature should not be counted.

The fourth resort is for the county judge/executive to contact the affected petitioners and ask them if the petition as filed accurately states their position regarding the proposed election. If this inquiry is conducted impartially, then the county judge/executive should be able to determine whether the lapse of time casts sufficient doubt on the reliability of the old signatures to justify a decision not to count them.

If a canvass of the affected petitioners fails to provide useful information, the county judge/executive should determine whether the petition was filed within a reasonable time after signing. In OAG 73-707 we said that the reasonableness of any particular time lapse is a fact question that can only be determined in court. Although we did not say it explicitly in OAG 73-707, we construe the question of reasonable time to mean that the county judge/executive must determine whether the petition when filed represents an accurate statement of the petitioner's wishes. For the benefit of county judge/executives and courts who confront this issue, we suggest the following considerations that may affect the determination whether a petition was filed within a reasonable time:

* Was the petition in continuous circulation during the entire time, or had it been abandoned and then revived?

* Was there another local option election during that time, either in the county or in a nearby county?

* Has there been any change in the boundaries of the territory to be affected?

* Have there been any significant demographic or political changes in the territory to be affected that might affect a voter's desire to petition for an election?

* Have there been any changes in the substantive law regarding alcoholic beverage sales?

Finally, as a last resort, we suggest that a delay of two years or more in filing a petition should be treated as a presumption of invalidity regarding the old signatures. We make this suggestion with the following strong cautions. First, this rule of thumb has no basis in any reported court decisions and consequently we provide no assurance that it will be adopted by the courts. Decisions from other states are not helpful since statutes and constitutional provisions generally establish a deadline for filing petitions; Kentucky's statute is unusual in this respect. Second, our suggestion should be used only as an absolute last resort when none of the previous methods resolve the question. Third, we suggest this rule of thumb only as a presumption that may be overcome by other evidence; we do not state that all signatures less than two years old must be counted or that all signatures over two years old must be disregarded.

May the proponents of the petition withdraw it and cancel the election?

No. OAG 63-630. Once a petition is filed with the county clerk, it is a public record. OAG 83-154.

May the proponents of a petition submit additional signatures after the petition has been filed?

Our answers to this question have not been entirely consistent. In OAG 70-151 we said that Horton v. Botts , 158 Ky. 11, 164 S.W. 352 (1914), provides authority for petitioners to supplement the petition with additional names after it has been filed. In OAG 83-134 we said that "once the petition has been filed with the proper officer it cannot be removed from his custody for any purpose, and particularly for the purpose of adding additional names and addresses." Our authority for that statement was 42 AmJur2d, Initiative and Referendum 36, which we quoted as saying that a petition may not be removed "for the purpose of assigning addresses and precinct numbers to identify signers and allow their signatures to be counted."

Of some relevance to this issue is the provision in KRS 242.020(1) that the petition "may consist of one (1) or more separate units," although the statute does not clarify whether the separate units must be tendered at the same time.

Our conclusion in OAG 83-134 appears to be squarely contradicted by Horton v. Botts . In that case, several petitioners decided to withdraw their names after the petition was filed. (The current version of the statute does not permit this.) As a result, the number of required signatures fell below the required amount. "Upon ascertaining the shortage," the court wrote, "appellants produced and offered to file an additional or supplemental petition." The court considered the petition as analogous to a petition in a court of law (as indeed was the function of the county court at that time); and, since a party filing a lawsuit may amend his petition, the court reasoned that the same right should be accorded to those filing a local option petition.

Whether Horton v. Botts is relevant today is of considerable doubt. Both the local option statutes and the nature of the county judge/executive's office have changed considerably since 1914. And, as OAG 83-134 points out, the decision is contrary to the weight of general authority. Nevertheless, until the case is overruled it must be considered.

We conclude that the various authorities on this issue may best be reconciled by the following rule: a local option petition may be supplemented at any time before the county judge/executive has made a determination regarding the sufficiency of the petition. After the county judge/executive has determined that the petition either is or is not sufficient, the petitioners may not tender supplemental signatures. To the extent that they contradict this opinion, OAG 83-134 and OAG 70-151 are overruled.

What if some signatures are in the same handwriting?

The county judge/executive may not throw out any signatures because they appear to be forgeries unless the county judge/executive is a handwriting expert. Widick v. Pursifull , 299 Ky. 773, 187 S.W.2d 447 (1945). Even if the county judge/executive is such an expert or has the advice of one, he must use restraint in disallowing signatures on the basis of handwriting, since a person may allow another to sign on his behalf. Id . In any case the county judge/executive should bear in mind that in the absence of evidence to the contrary there is a presumption that each signature was written by the voter himself. Boyd v. Alexander , Ky., 284 S.W.2d 85 (1956).

Should illegible signatures be counted?

The general rule has been stated thus:

Illegible signatures should be stricken, as should signatures so incomplete that the identity of the signer cannot be ascertained from the face of the petition, unless it is affirmatively shown that the person whose signature appears is in all respects a qualified elector.

82 C.J.S., Statutes 123. This general rule is somewhat modified by the requirement of KRS 242.020(2) that the petitioner state his social security number or date of birth. If this information is given, the clerk should be able to determine the identity of the person signing even though the actual signature may be illegible. Therefore an illegible signature should be disallowed only if the clerk or the county judge/executive is unable to determine the petitioner's identity after consulting the other information given on the petition.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General