dissenting.
I respectfully disagree. The majority opinion erroneously interprets KRS 118.176 and misconstrues its application to the facts of this case with the result that a vital constitutional mandate, that of residency, is ignored, permitting the movant James Noble to hold the position of District Judge in a jurisdiction in which he does not reside.
*463Our analysis begins with the basic premise that Noble is not a resident of the Thirty-ninth Judicial District. The trial court, as a fact finder so rules. The majority declares that the circuit court was erroneous as a matter of law by relying on KRS 116.035(1) to regard Noble’s spousal residence in finding that Noble failed to meet his residency requirements, whereas it should have instead used KRS 118.015(7) and focused on the candidate’s “actual residence.” What the majority fails to note is that, even if the lower court had applied the “correct” standard of KRS 118, it still could not have found Noble to be a resident of his district.
In a careful consideration of all the testimony presented at trial, it is quite obvious that the “actual residence” of Noble is in Winchester, where not only his entire family resides but wherein several key witnesses, including two judges, testified that Noble said he resided, and where other witnesses observed him residing. To assume any trial court could have found Noble was a resident of Breathitt County on mere testimony that he “lived in his law offices” with a refrigerator, hot plate, and sofa bed, is beyond belief.
The majority’s first and principal reason to allow Noble to remain in office despite his residency, is that the Franklin Circuit Court lacked jurisdiction by failing to meet the herein requirements of KRS 118.176. No authority, however, says that KRS 118.-176 is applicable to judicial candidates, and such a conclusion by the majority is completely contrary to the legislative history of that statute and all other judicial election laws.
Our state judiciary is a very special creature in that our Constitution declares all judges members of the same Court of Justice. No provision of the Constitution implies that any judge’s powers or authority are limited to the district in which he or she is elected and thus it has been said that judges have “equal capacity to act throughout the Commonwealth ...” Richmond v. Commonwealth, Ky., 637 S.W.2d 642 (1982). Judicial elections have been distinguished from other types of elections in our statutes and accordingly KRS 118A has been the exclusive Chapter governing judicial elections since the Court of Justice became a statewide office in 1976. The Chapter contains a pointed preclusion of the application of certain other election statutes, specifically KRS 118.176, to judicial elections. Thus, when the legislature modified KRS 118.176, a general election statute, to eliminate references to “party” elections, one can hardly assume that it meant to override the KRS 118A preclu-sions, and that judicial elections would now fall under its mandates. If the legislature had intended such a drastic reversal in statutory application, an express repeal would certainly have been in order. It is certainly farfetched to conclude, as did the majority, that the change was intended to close a “gap in the law so as to provide the exclusive remedy for challenges to judicial elections” without so much as a simple statement to effectuate such.
Having determined that KRS 118.176 is not applicable here, proper jurisdiction was in Franklin Circuit Court. Since all judges are now state officials, not local, the Secretary of State was the necessary party defendant to whom the Court would direct orders to perform the relief demanded in the complaint. Thus Franklin Circuit Court was the proper place to seek relief for a complaint naming the Secretary of State.
The majority is reluctant to rely solely on the holding that KRS 118.176 precluded jurisdiction and proceeds on several other theories to deny Meagher jurisdiction.
The majority first counters the Court of Appeals’ use of Dempsey v. Stovall, Ky., 418 S.W.2d 419 (1967) to assume jurisdiction. In my opinion, the authority granted the Court under Dempsey is clear. There, as here, the Court, noting the importance of the issue at bar, granted advice to the Secretary of State as a party to the litigation. Thus, even if jurisdiction was improper in the Franklin Circuit Court, the Court of Appeals correctly assumed jurisdiction under Dempsey.
*464The majority next challenges Meagher’s lawsuit by asserting that since she sat on her rights, such action not being “her highest priority”, she was precluded from filing. It relies on the decisions of Fletcher v. Wilson, Ky., 495 S.W.2d 787 (1973) and Fletcher v. Teater, Ky., 503 S.W.2d 732 (1974), which hold that the qualifications of a candidate to appear on the ballot should be challenged before the primary election, not afterwards. These decisions dictate an opprobrious burden on candidates and should be overruled. It is judicially legislating to read a time-limit requirement into KRS 118.176 where no such wording exists, and the result is an unconstitutional burden on our election system.
Though the majority claims that Meagher still has a channel for challenging Noble’s qualifications through an ouster action under KRS 415.030, 415.040, and 415.-050, such a contest is not available here. What Meagher has challenged are Noble’s constitutional qualifications under Sec. 122, not Noble’s statutory “bona fides.” Such constitutional challenge cannot be taken after the election is held, so the decision here today is binding on that issue.