HONORABLE GEORGE W. DAVIS, III, APPELLANT
HONORABLE THOMAS D. WINGATE JUDGE, FRANKLIN CIRCUIT COURT, DIVISION II, APPELLEE AND MARC I. ROSEN AND COMMONWEALTH OF KENTUCKY, REAL PARTIES IN INTEREST
Released for Publication August 26, 2014.
ON APPEAL FROM COURT OF APPEALS. CASE NO. 2014-CA-000678-OA. FRANKLIN CIRCUIT COURT CASE NO. 14-CI-00114.
CHIEF JUSTICE JOHN D. MINTON, JR. All sitting. Minton, C.J.; Abramson, Keller, Noble, and Venters, JJ., concur. Scott, J., dissents by separate opinion in which Cunningham, J., joins.
OPINION AND ORDER
JOHN D. MINTON, JR.,
George W. Davis, III, appeals from the order of the Court of Appeals that denied his petition for a writ commanding the Judge of the Franklin Circuit Court to dismiss the underlying case for want of jurisdiction. The underlying case in Franklin Circuit Court is a declaratory judgment action filed by Marc I. Rosen in which he contests the constitutionality of
House Bill (HB) 427 (2013 Regular Session), a statute that prohibits judges who have chosen to retire as a Senior Status Special Judge from becoming a candidate for an elected office for five years after retirement.
Davis argues Franklin Circuit Court lacks jurisdiction to decide Rosen's constitutional challenge because the General Assembly, through Kentucky Revised Statutes (KRS) 118.176, has created a statutory mechanism to determine the bona fides of a candidate and that statute vests exclusive jurisdiction in the candidate's county of residence. Rosen, a former Senior Status Judge and a resident of Boyd County, Kentucky, seeks to become a candidate for circuit judge in the 2014 election.
We affirm the order of the Court of Appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Effective June 25, 2013, HB 427 amended various statutes governing elections. It sought to prohibit " a judge acting as a Senior Status Special Judge" from " becom[ing] a candidate for any elected office during the five (5) year term prescribed in KRS 21.580[.]"  To this end, the following language--or a slight variation thereof--was inserted to amend the associated statutes:
A judge who elected to retire as a Senior Status Special Judge in accordance with KRS 21.580 shall not become a candidate or a nominee for any elected office during the five (5) year term prescribed in KRS 21.580 (1)(a) 1., regardless of the number of days served by the judge acting as a Senior Status Special Judge.
Before the filing deadline in late January of this year, Rosen submitted nominating papers with the Kentucky Secretary of State to become a candidate for the 32nd Judicial Circuit of Kentucky, First Division, in the 2014 election cycle. Rosen held the same Boyd Circuit judgeship for which he now seeks to become a candidate until January 31, 2009, when he elected to retire as a Senior Status Special Judge.
After submitting his nominating papers, Rosen filed the underlying declaratory judgment action in Franklin Circuit Court, seeking a determination of the constitutionality of HB 427. As the incumbent seeking re-election, Davis sought and was granted leave to intervene in Rosen's suit. Immediately, Davis moved to dismiss for want of jurisdiction, raising essentially the same question he now presents in this
appeal. The Franklin Circuit Court denied Davis's motion to dismiss.
A week after Rosen filed the underlying declaratory action in Franklin Circuit Court, a concerned voter in Boyd County filed an action challenging the bona fides of Rosen's candidacy under KRS 118.176(2). It is unnecessary for the resolution of this appeal to go into much detail discussing the proceedings in Boyd Circuit. In short, the Boyd Circuit found Rosen was disqualified from being a candidate because he had been a Senior Status Special Judge and the five-year term in KRS 21.580(1)(a) 1 had not passed. The Boyd Circuit made no explicit determination concerning the constitutionality of HB 427 but perhaps implicitly upheld its constitutionality because it applied the terms of HB 427 to disqualify Rosen.
Under Kentucky Rules of Civil Procedure (CR) 65.07, Rosen petitioned the Court of Appeals to set aside the Boyd Circuit order. The Court of Appeals granted Rosen's motion, specifically finding " it was incumbent upon [Boyd Circuit] to either address the constitutional question underpinning the controversy or to defer any ruling until the Franklin Circuit Court had resolved the constitutional question." 
Meanwhile, in Franklin Circuit, Davis renewed his motion to dismiss following Boyd Circuit's judgment. Again, the Franklin Circuit denied Davis's motion, noting that despite Rosen asserting the constitutionality of HB 427 as a defense in Boyd Circuit, the merits of the issue had not been previously litigated; and, accordingly, the Franklin Circuit found the constitutional question properly before it, irrespective of the bona fides challenge in Boyd Circuit. Davis promptly ...