ZEITZ v. KULKARNI (2024)

ORDER

In this case about the election of a state representative to our General Assembly, this appeal must identify the legally permitted course for the upcoming general election where the primary election was declared never to have happened by the Kentucky Supreme Court. Kulkarni v. Horlander et al., No. 2024-SC-0215-DGE, --- S.W.3d ––––, 2024 WL 3929598 (Ky. Aug. 22, 2024) (“Kulkarni I”).¹ Movants, William Zeitz (“Zeitz”) and Dennis Horlander (“Horlander”), filed a motion for interlocutory relief pursuant to RAP ² 20(B). Because the Kentucky Secretary of State, Michael Adams, appears to have correctly applied the law to the particular circumstances presented, we find no substantial question on the merits of this case, and we deny the pending motion.

BACKGROUND

Kulkarni I involved a challenge to Nirupama Kulkarni's qualifications to appear on the ballot in the Democratic primary election for State Representative for the 40th House District. Incumbent Representative Kulkarni had obtained nominating signatures from two individuals, but one of the signatories was not a registered Democrat at the time she signed the nominating petition (as required by KRS ³ 118.125(2)). This defect was not discovered and remedied until after the filing deadline for nominating petitions had passed.

Horlander brought a challenge to Representative Kulkarni's qualifications pursuant to KRS 118.176. The circuit court found that Representative Kulkarni had substantially complied with the statute and denied Horlander's motion to disqualify Representative Kulkarni. The matter was appealed to this Court, and we reversed the circuit court. The matter was appealed to our Supreme Court, which affirmed.

The Supreme Court held that the same-party signatory requirements of KRS 118.125(2) were mandatory in nature and required strict compliance. The Court ruled that Representative Kulkarni had not complied with the statute and was therefore disqualified as a candidate in the primary election. But, significantly, the Supreme Court had previously directed the primary election to proceed as if there had been no challenge. Representative Kulkarni's candidacy was invalidated only after the primary election had taken place. Her name was not removed from the primary ballot. The Supreme Court held that this meant “no election had occurred” pursuant to its prior decision in Stephenson v. Woodward, 182 S.W.3d 162, 173 (Ky. 2005). The Court further directed that “the provisions of KRS 118.212 shall be observed.” Kulkarni I, ––– S.W.3d at ––––, 2024 WL 3929598, at *10.

Other than this reference to KRS 118.212, the Supreme Court did not address how the uncertainty resulting from its decision might be remedied. The Supreme Court noted that they were not asked to address the issue of remedy. Now, answering that question is unavoidable.

After the Supreme Court rendered its opinion in Kulkarni I, the Secretary of State sent correspondence to the Executive Directors of the Kentucky Democratic Party and the Republican Party of Kentucky, certifying a vacancy in candidacy existed for the Office of State Representative, 40th Representative District since August 22, 2024 (the date of the Supreme Court's opinion in Kulkarni I), pursuant to KRS 118.105(4). Thereafter, the Jefferson County Democratic Party selected Representative Kulkarni as the Democratic nominee for State Representative for the 40th House District in the general election. The Republican Party did not nominate a candidate.

In response, Zeitz and Horlander filed a Petition for a Declaration of Rights, Injunctive Relief, and Election Disqualification in the Franklin Circuit Court. They sought to challenge the Secretary of State's declaration of a vacancy and resultant nomination of Kulkarni; sought to enjoin the election officials from printing any ballots with Representative Kulkarni's name on them or counting any ballots for her; and sought to order the Secretary of State to issue a certificate of nomination to Zeitz, the other candidate in the Democratic primary election for State Representative for the 40th House District. The circuit court denied their motion for interlocutory relief.

Movants filed a motion for interlocutory relief and for emergency relief with this Court. This Court recommended transfer to the Supreme Court, but that was denied by order dated September 10, 2024. Thereafter, Movants’ request for emergency relief was denied as moot, and this Court ordered any responses to the motion due by September 17, 2024.

STANDARD OF REVIEW

A party may move for interlocutory relief in this Court under RAP 20(B) after a circuit court “by interlocutory order has granted, denied, modified, or dissolved a temporary injunction[.]” RAP 20(B). “In requesting interlocutory relief pursuant to CR ⁴ 65.07,⁵ a party is arguing that, by granting or denying an injunction under CR 65.04, the trial court's decision is not based on substantial evidence and is clearly erroneous.” Kindred Hosps. Ltd. P'ship v. Lutrell, 190 S.W.3d 916, 919 (Ky. 2006) (citation omitted).

The standard for granting a temporary injunction in Kentucky is well-settled. It is an extraordinary remedy, and the bar is high for a party seeking such relief. The trial court reviews applications for temporary injunctive relief under CR 65.04 for three elements:

First, the trial court should determine whether plaintiff has complied with CR 65.04 by showing irreparable injury. This is a mandatory prerequisite to the issuance of any injunction. Secondly, the trial court should weigh the various equities involved. Although not an exclusive list, the court should consider such things as possible detriment to the public interest, harm to the defendant, and whether the injunction will merely preserve the status quo. Finally, the complaint should be evaluated to see whether a substantial question has been presented. If the party requesting relief has shown a probability of irreparable injury, presented a substantial question as to the merits, and the equities are in favor of issuance, the temporary injunction should be awarded. However, the actual overall merits of the case are not to be addressed in CR 65.04 motions.

Maupin v. Stansbury, 575 S.W.2d 695, 699 (Ky. App. 1978).

“An appellate court may not disturb a trial court's decision on a temporary injunction unless the trial court's decision is a clear abuse of discretion.” Commonwealth, ex rel. Conway v. Thompson, 300 S.W.3d 152, 162 (Ky. 2009), as corrected (Jan. 4, 2010) (citation omitted). “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). An error of law, however, constitutes an abuse of discretion. Allen v. Eder, 682 S.W.3d 32, 34 (Ky. App. 2023).

ANALYSIS

The circuit court performed the required analysis set forth in Maupin and found that Movants’ request for injunctive relief did not meet the stringent standard required to grant it. Though the circuit court believed that the Movants presented a substantial legal question on the merits, it found that they were unable to meet the other two requirements of the Maupin standard. We recognize the potential for irreparable harm if Zeitz is wrongly denied an unopposed candidacy. The focus of our review directs us to the governing statutes to evaluate the legal question presented.

To overcome the circuit court's conclusion, this Court would have to find that the circuit court clearly abused its discretion by committing an error of law or that its decision was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Eder, 682 S.W.2d at 34; English, 993 S.W.2d at 945. The circuit court appears to have rendered a decision consistent with several recent Supreme Court cases, including Kulkarni I, so we cannot say that its opinion is arbitrary or that it committed an error of law. Our analysis indicates that the decision is in accord with the applicable statutes when read together.

The circuit court noted that no winner of the Democratic primary was ever certified by the Secretary of State. Legally, it was as though “no election ha[d] occurred.” Kulkarni I, ––– S.W.3d at ––––, 2024 WL 3929598, at *10 (quoting Stephenson v. Woodward, 182 S.W.3d 162, 173 (Ky. 2005)). Since no election had occurred, there was no Democratic victor. No Republican candidates sought nomination in the primary, so a complete vacancy existed. As we will see, a careful review of the applicable statutes indicates that Secretary of State Adams was correct in declaring the existence of a vacancy, in soliciting nominations from the Democrat and Republican parties, and in refusing Zeitz his requested certification as the only candidate.

Though it dealt with a non-partisan judicial primary, we find the case of Kentucky State Board of Elections v. Faulkner, 591 S.W.3d 398 (Ky. 2019), to be instructive. In that case, the first-place winner of a judicial primary election died just after the election. In such a non-partisan race, the top two vote-getters proceed to the general election. The third-place finisher in the primary sought elevation to the second-place position and a certificate of nomination so that she could appear on the ballot in the general election. Faulkner, 591 S.W.3d at 400. The Kentucky Supreme Court analyzed the statute dealing with a judicial primary candidate withdrawing or dying, KRS 118A.150(6), and found that it did not serve to elevate the number-three candidate to the second-place position, when the first- or second-place candidate died after the election. The relevant portion of KRS 118A.150(6) provides,

in a primary election, if there are only one (1) or two (2) remaining candidates on the ballot for that office, following the withdrawal or death of the other candidate or candidates, neither the precinct election officers nor the county board of elections shall tabulate or record the votes for the remaining candidate or candidates, and the officer with whom the remaining candidate or candidates has filed his or her nomination papers shall immediately issue and file in his or her office a certificate of nomination for that remaining candidate or candidates and send a copy to the remaining candidate or candidates.

KRS 118A.150(6). In Kulkarni I, the Supreme Court directed that a similar statute applied to partisan primary elections, KRS 118.212. The Kulkarni I Court wrote, “when a nomination is invalidated and it is impractical to strike the candidate's name from the ballot, the provisions of KRS 118.212 shall be observed. Barnard, 933 S.W.2d at 396.” Kulkarni I, ––– S.W.3d at ––––, 2024 WL 3929598, at *10. KRS 118.212(4) contains nearly identical language to KRS 118A.150(6):

if there is only one (1) remaining candidate on the ballot for that office in a primary election, following the withdrawal or death of the other candidate or candidates, neither the precinct election officers nor the county board of elections shall tabulate or record the votes for the remaining candidate, and the officer with whom the remaining candidate has filed his or her nomination papers shall immediately issue and file in his or her office a certificate of nomination for that remaining candidate and send a copy to the remaining candidate.

KRS 118.212(4). Analogizing to Faulkner, KRS 118.212(4) would not serve to elevate the second-place finisher to first place upon “the withdrawal or death” of the other candidate.

Zeitz was not entitled to be declared the winner of an election that did not count and which he lost by a four-to-one margin. Zeitz was not unopposed before the primary votes were cast. KRS 118.185 does not give him a right to be declared the unopposed winner. Had the Supreme Court not allowed votes to be cast for Kulkarni by disqualifying her before the primary, then Zeitz's position might have been quite different, as Secretary of State Adams has noted.

Not every possibility for vacancy can be thought of and listed in a given statute. KRS 118.212 is not limited to circumstances where a candidate voluntarily withdraws or dies. In Barnard v. Stone, 933 S.W.2d 394 (Ky. 1996), the Kentucky Supreme Court concluded that KRS 118.212 applied with equal force to those situations when a candidate has been involuntarily disqualified. Barnard has not been overruled, and as noted above, the Supreme Court in Kulkarni I cited it with approval.

“We presume that the General Assembly intended for the statute to be construed as a whole, for all of its parts to have meaning, and for it to harmonize with related statutes.” Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011). Based on how the Supreme Court interpreted KRS 118A.150(6) in Faulkner and the “withdraw or die” language of KRS 118.212 in Barnard, we cannot say that the trial court abused its discretion. Again, we conclude that Zeitz is not entitled to ascend to the first-place position in the Democratic primary.

The separate question is what Kulkarni's status is. Under the first phrase of KRS 118.345(1), a disqualified candidate for a primary election generally cannot be the candidate for the general election. But the rest of the statute makes it clear that the previously disqualified candidate may be nominated for the general election in the event of a vacancy. This statute then directs us to KRS 118.105.

It is important to understand the substantial difference between Subsections (3) and (4) of KRS 118.105. Subsection 3 governs when there is vacancy of only one party's nominee. That vacancy must be because of death or a disabling condition. Subsection (4) governs when there is an overall vacancy for the office. Subsection (4) does not have the limiting language about death or disability. Secretary of State Adams correctly understood that the cause of vacancy was not limited in those circumstances. In this case, the final ruling of the Kentucky Supreme Court after the uncounted primary caused the vacancy. No one had been nominated by either party for this office. The trial court correctly denied injunctive relief because Secretary of State Adams did not err in declaring a vacancy pursuant to KRS 118.105(4).

WHEREFORE, having reviewed the record and being otherwise sufficiently advised, IT IS HEREBY ORDERED that Movants’ motion shall be, and hereby is, DENIED.

FOOTNOTES

1.   Ordered to be published. This opinion became final on September 12, 2024.

2.   Kentucky Rules of Appellate Procedure.

3.   Kentucky Revised Statutes.

4.   Kentucky Rules of Civil Procedure.

5.   RAP 20(B) replaced and is substantially similar to the former CR 65.07.

EASTON, JUDGE:

ALL CONCUR.