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Stoecklin v. Fennell

Court of Appeals of Kentucky

August 11, 2017

JACK STOECKLIN APPELLANT
v.
ELISABETH FENNELL; JAMES LEURSEN, CAMPBELL COUNTY CLERK; AND CAMPBELL COUNTY BOARD OF ELECTIONS APPELLEES

         APPEAL FROM CAMPBELL CIRCUIT COURT HONORABLE FRED A. STINE, V, JUDGE ACTION NO. 16-CI-00966

          BRIEF FOR APPELLANT: Michael L. Schulkens

          BRIEF FOR APPELLEE: Jeffrey C. Mando Louis D. Kelly

          BEFORE: KRAMER, CHIEF JUDGE; CLAYTON AND THOMPSON, JUDGES.

          OPINION

          THOMPSON, JUDGE

          Jack Stoecklin, a voter in the City of Newport, Kentucky, appeals from the opinion and order of the Campbell Circuit Court dismissing his action for injunctive relief and declaration of rights, and certifying the election of Elisabeth Fennell as a Newport City Commissioner. The sole dispute on appeal is whether by signing Fennell's nomination petition early, before November 4, 2015, voters rendered their signatures ineffective, thus depriving Fennell of having a valid nomination petition and voiding her subsequent election.

         Pursuant to Kentucky Revised Statutes (KRS) 118.315(2) to be placed on the general election ballot for the position of city commissioner, Fennell was required to file a nominating petition declaring that she possessed all the statutory and constitutional requirements for her office, with two signatures by registered voters. It is undisputed that Fennell was personally qualified to be a candidate for city commissioner and her petition contained four signatures by registered voters.

         KRS 118.315(2) also specifies that "[e]ach petitioner shall include the date he or she affixes the signature, address of residence, and date of birth. Failure of a voter to include the signature affixation date, date of birth, and address of residence shall result in the signature not being counted." It is undisputed that each of the voters petitioning for Fennell to be placed on the ballot fully complied with this provision.

         Both KRS 118.315(2) and KRS 83A.045(2)(a), (b)1 provide that "[s]ignatures for nomination papers shall not be affixed on the document to be filed prior to the first Wednesday after the first Monday in November of the year preceding the year in which the office will appear on the ballot." KRS 83A.045(2)(a), (b)1 also sets the deadline for filing the nomination petition. These statutes do not specify the result of failing to comply with these provisions.

          The first Wednesday after the first Monday in November 2015 was November 4, 2015. Fennell filed her nomination petition timely on November 9, 2015, with signatures by four voters that indicated one signed on October 19, 2015, one signed on November 2, 2015, and two signed on November 3, 2015.

         Pursuant to statute, the county clerk was to examine Fennell's nominating petition to determine if it was "regular on its face" and notify her of any error. KRS 118.315(4); KRS 83A.170(4). Fennell did not receive any notice of error.

         On November 7, 2016, the day before the general election, Stoecklin filed a complaint pursuant to KRS 118.176 challenging Fennell's bona fides. He argued because all signatures were affixed to Fennell's nominating papers prior to November 4, 2015, these signatures were invalid and should be stricken, disqualifying Fennell for election. He argued the Campbell County Board of Elections should, therefore, be required to strike Fennell from the rolls or refuse to count votes cast on her behalf.

         The case was not heard before the general election. At the general election, Fennel received the third most votes resulting in her reelection as a city commissioner.

         The circuit court found that Fennell's failure to obtain the required signatures on or after November 4, 2015, was a technical violation of a directory part of the statute that was not essential to the validity of the election, affirmed ...


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