Withrow v. Willis

CLAY, Commissioner. Appellant is a defeated candidate for the Republican nomination for the office of county judge of McLean County. The primary election was held May 27, 1969. Subsequently he filed this suit (which is not an election contest) under the provisions of KRS 123.991(4) against appel-lees, the successful candidate and county clerk, to have the nomination declared void and to enjoin the clerk from placing the candidate’s name on the ballot for the November election. The principal ground asserted was that appellee candidate (hereafter “Willis”) had failed to appoint a campaign treasurer and designate a campaign depository at the time specified in KRS 123.071(1) (a section of the “Corrupt Practices Act”). The Chancellor adjudged there had been compliance with the statute and dismissed appellant’s complaint. The first question presented, which we consider dispositive of the controversy, is whether appellant has a cause of action. Admittedly he is a registered voter and the violations alleged fall within the scope of KRS 123.991. Subsection (4) of that statute provides: “Any registered voter may sue for in-junctive relief to compel compliance with the provisions of KRS 123.005 or 123.051 to 123.101.” (Emphasis added.) Appellant did not bring this suit to compel compliance with the filing and reporting provisions of the statutes involved. The prayer of his complaint was to have the court (1) declare Willis’ nomination void, and (2) enjoin the county clerk from placing Willis’ name on the ballot. It was alleged, and we will assume for the purpose of discussion, that Willis had failed to make a timely appointment of a campaign treasurer and a designation of a campaign depository required by KRS 123.071(1); that he had failed to make a timely report as his own campaign treasurer required by KRS 123.086(2) (b); and that his campaign depository had failed to file with the Kentucky Registry of Election Finance the statements required by KRS 123.-091. As we have said above, however, this suit was not brought to compel compliance with the filing and reporting provisions of those statutes. It is contended by appellant that since KRS 123.071(1) provides the candidate’s “qualification shall not be complete” until he has properly appointed his campaign treasurer and designated a campaign depository, and since KRS 123.991(2) provides that the nomination of a candidate [629] who violates the statutes here involved “shall be void”, this suit is authorized to effectuate Willis’ forfeiture of the nomination. But KRS 123.991(4), which is the only source of appellant’s claimed cause of action, does not bestow that right. It only authorizes appellant to sue to compel compliance with those two statutes.1 KRS 123.991(4) does not provide who may be sued for injunctive relief. Clearly it contemplates as a defendant someone required to do the acts specified. KRS 123.-071(1) does not require anyone to take cognizance of or to act upon a candidate’s disqualification. KRS 123.991(2) does not require any one to take cognizance of or act upon a void nomination. Thus a registered voter is not authorized to bring suit against anyone to enforce the forfeiture provisions of those statutes. If the legislature had intended to allow any registered voter the right to sue to have a nomination (or election) declared void, or to enjoin the placing of a candidate’s name on the ballot, it would have been quite simple to have said so. However, the best evidence of what the legislature intended is the plain language it used. We are simply construing literally the explicit wording of KRS 123.991(4) which prescribes the scope of the remedy appellant, as a registered voter, may invoke. Prior to the enactment of the statutes here involved (in 1966), it had long been the settled law that taxpayers or electors could not bring suit against successful candidates to determine whether the “Corrupt Practices Act” had been violated. Dietz v. Zimmer, 231 Ky. 546, 21 S.W.2d 999 (1929); Sparks v. Boggs, Ky., 339 S.W.2d 480 (1960). If the legislature had intended a complete reversal of this policy, we believe a clear expression of such a purpose would have been incorporated in the 1966 Act. It is true a restricted remedy was therein given registered voters “to compel compliance”. (KRS 123.991(4)). But that was all. We cannot stretch the language to encompass the relief appellant here seeks. Had there not been other remedies to carry out the purposes of and enforce the penalty provisions of the Act, we could envision some justification for straining KRS 123.991(4) beyond its literal meaning. However, the disqualification and voiding provisions of the statutes may be invoked by other persons under other laws. A defeated candidate (such as appellant) could contest the nomination under KRS 122.020. County attorneys are authorized to institute actions against usurpers of county offices. KRS 415.040. Public officials who have election duties to perform may, under proper circumstances, raise the very questions here presented by appellant. Dempsey v. Stovall, Ky., 418 S.W.2d 419 (1967). KRS 118.400(1) provides in substance that the county board of election commissioners shall not issue certificates of election to candidates who have failed to comply with KRS 123.065 to 123.101. Of course there are also criminal penalties for violation of the “Corrupt Practices Act”. KRS 123.990, 123.991 and 123.992. It is not the intention of this court to defeat the will of the legislature to create an effective and enforceable “Corrupt Practices Act”. In view of the other remedies above pointed out, the nature of the restricted remedy given any registered voter by KRS 123.991(4) simply does not encompass such voter’s right to have an election declared void. We do not feel justified in writing such a provision into the Act. KRS 123.991(4) does not authorize the appellant to sue Willis to have his nomination declared void, nor does it authorize him to sue the county clerk to enjoin him from placing Willis’ name on the ballot. There is no other source of his claimed right of action. Having no right to sue, [630] his complaint was properly dismissed. The Chancellor based his judgment on findings of fact and conclusions of law to the effect that Willis had complied with the law. In view of our holding in this opinion, such an adjudication was inappropriate and appellant’s complaint was improperly dismissed on this ground. The judgment should be modified to show that the basis thereof was appellant’s lack of capacity to maintain this suit to raise the question of Willis’ alleged noncompliance with the statutes involved. As modified consistently with this opinion, the judgment is affirmed. MILLIKEN, NEIKIRK, PALMORE, REED and STEINFELD, JJ., concur. EDWARD P. HILL, Jr., C. J., and OSBORNE, J., dissent. Footnotes [1] This may appear as an illusory right with respect to some of the statutes specified in KRS 123.991(4), but that is the only remedy afforded.