Robinson v. Ehrler

AKER, Justice,

dissenting.

With all deference to the opinion of my colleagues in the majority I must dissent. While recognizing that KRS 67.050 was not specifically followed in regards to either publication or advertising of notice of the election, I must conclude that these requirements have outlived their usefulness in the day of modern communication. The notice requirements of KRS 67.050 are anachronisms which have flowed from the 19th century which was an era of limited news and information dissemination. We no longer suffer from that limitation.

The extensive media coverage of this election and the number of votes cast on the issue demonstrate that the public did have notice of the referendum and its contents.

To preserve the integrity of the election process, there must be a deadline to an election challenge. I believe that KRS 120.250 would bar the present suit since it was filed past the 30-day time limit. Although the language of KRS 120.250 does not specifically include the present type of election challenge, the statute can be read so as to include it.

One cannot fit a square peg in a round hole, but under the present circumstances I am not adverse to whittling an oval peg to fit in a round hole. This court is continually called upon in a flurry of last-minute litigation to pull someone’s “chestnuts” out of the fire, and I would use KRS 120.250 as a method of “blight” to kill off this type of “chestnut.”

Therefore, I would affirm the judgment of the Jefferson Circuit Court as it pertains to these questions.

I am authorized to say that GANT, J., joins in this dissent.