RENDERED: MAY 15, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0365-EL
ERIC DETERS APPELLANT
ELECTION APPEAL v. FROM LEWIS CIRCUIT COURT HONORABLE BRIAN CHRISTOPHER MCCLOUD, JUDGE ACTION NO. 24-CI-00022
THOMAS HAROLD MASSIE; KENTUCKY BOARD OF ELECTIONS; AND MICHAEL G. ADAMS APPELLEES OPINION AFFIRMING
* * * * * *
BEFORE: THOMPSON, CHIEF JUDGE; KAREM AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Appellant Eric Deters appeals the Lewis Circuit Court’s order
denying his petition under Kentucky Revised Statutes (KRS) 118.176 to disqualify
Appellee Congressman Thomas Massie as a candidate for the U.S. Representative
of Kentucky’s Fourth Congressional District. We affirm the circuit court’s order. BACKGROUND
On December 18, 2023, Congressman Thomas Massie filed a
notification and declaration with the Kentucky Secretary of State, seeking
reelection in 2024. One of his witnesses, Theodore “TJ” Roberts, listed his
residential address on the form at East Bend Road, Burlington, Kentucky. In May
of 2023, Roberts’ residence burned down. Roberts posted online that he and his
family would remain at the address and rebuild. In January of 2024, Roberts and
his family returned to their restored and reconstructed home. On February 22,
2024, Deters filed the underlying action under KRS 118.176, challenging Massie’s
status as a bona fide candidate.
Deters argued that since Massie’s notification and declaration listed
Roberts’ residence as East Bend Road, although he slept elsewhere during the
reconstruction, Massie’s declaration was false, thereby invalidating Massie’s
candidacy. The circuit court disagreed, denying and dismissing Deters’ petition.
The circuit court found that while Roberts restored and reconstructed
his home at East Bend Road, he continued to use that address for his mail, voter
registration, vehicle registration, and driver’s license. He also stored personal
property and his animals in the garage and barn at the same address. Between June
18, 2023, and January 10, 2024, Roberts slept at an apartment on Torrid Street in
Burlington, paid for by his homeowners’ insurance policy. The court found that
-2- Roberts’ temporary address was also located within the Fourth Congressional
District and the 66th Kentucky House District, the same district in which Massie
sought to be nominated.
The court ruled that Massie’s notification and declaration were valid
and that Massie shall remain a bona fide candidate. The court held that Roberts
did not lose his residency at East Bend Road based on KRS 116.035(2), which
provides:
A voter shall not lose his or her residence by absence for temporary purposes merely; nor shall he or she obtain a residence by being in a country or precinct for temporary purposes without the intention of making that county or precinct his or her home.
Deters filed this appeal thereafter. He argues the circuit court erred in
concluding the term “residential address” as used on the Secretary of State’s
nomination and declaration form means a place where a person resides, not his
legal domicile. Deters additionally asserts he was denied due process of law and
an opportunity to impeach Roberts’ affidavit listing his residential address as East
Bend Road.
STANDARD OF REVIEW
This appeal comes before the Court upon the circuit court’s
conclusions of law and interpretation of KRS 118.176 and KRS 116.035.
Accordingly, the circuit court’s order is subject to de novo review. Hardin v.
-3- Montgomery, 495 S.W.3d 686, 694 (Ky. 2016) (citing McClendon v. Hodges, 272
S.W.3d 188, 190 (Ky. 2008)). With this standard of review in mind, we will
address Deters’ arguments separately.
ANALYSIS
Roberts’ Residential Address
Deters’ argument that the Secretary of State’s form required Roberts’
temporary residential address, rather than his permanent residential address, is
without merit. KRS 118.125(2)1 mandates that a notification and declaration “shall
be signed by the candidate and by not less than two (2) registered voters of the
same party from the district or jurisdiction from which the candidate seeks
nomination.” The requirements to be a registered voter in Kentucky are located in
KRS 116.025(1):
Every person who is a citizen of the United States, a resident of this state, and a resident of the precinct in which he or she offers to vote on or before the day preceding the closing of the registration books for any primary, general, or special election, who possesses on the day of any election the qualifications set forth in Section 145 of the Constitution,[2] exclusive of the
1 In interpreting Kentucky Revised Statutes (KRS) 118.125, we must construe the statute as a whole so that all its provisions have meaning and harmonize with related statutes. Jefferson Cnty. Bd. of Educ. v. Fell, 391 S.W.3d 713, 718-19 (Ky. 2012) (quoting Shawnee Telecom Resources, Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011)). We also presume that the General Assembly did not intend for an absurd or unconstitutional result. Id. 2 Section 145 of the Kentucky Constitution provides: “Every citizen of the United States of the age of eighteen years who has resided in the state one year, and in the county six months, and the precinct in which he offers to vote sixty days next preceding the election, shall be a voter in said -4- durational residency requirements, who is not disqualified under that section or under any other statute, and who is registered as provided in this chapter, may vote for all officers to be elected by the people and on all public questions submitted for determination at that election, in the precinct in which he or she is qualified to vote. Any person who shall have been convicted of any election law offense which is a felony shall not be permitted to vote until his or her civil rights have been restored by executive pardon.
(Emphasis added.)
“A voter’s residence shall be deemed to be at the place where his or
her habitation is, and to which, when absent, he or she has the intention of
returning.” KRS 116.035(1) (emphasis added). Moreover, “[a] voter shall not
lose his or her residence by absence for temporary purposes merely[.]” KRS
116.035(2) (emphasis added).
Deters argues “[b]ecause the law requires two witnesses who reside
and vote in the Congressional District. [sic] There is no requirement they have
legal domiciles in the District.” Appellant’s Brief, at 7. We disagree. “[A] citizen
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RENDERED: MAY 15, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0365-EL
ERIC DETERS APPELLANT
ELECTION APPEAL v. FROM LEWIS CIRCUIT COURT HONORABLE BRIAN CHRISTOPHER MCCLOUD, JUDGE ACTION NO. 24-CI-00022
THOMAS HAROLD MASSIE; KENTUCKY BOARD OF ELECTIONS; AND MICHAEL G. ADAMS APPELLEES OPINION AFFIRMING
* * * * * *
BEFORE: THOMPSON, CHIEF JUDGE; KAREM AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Appellant Eric Deters appeals the Lewis Circuit Court’s order
denying his petition under Kentucky Revised Statutes (KRS) 118.176 to disqualify
Appellee Congressman Thomas Massie as a candidate for the U.S. Representative
of Kentucky’s Fourth Congressional District. We affirm the circuit court’s order. BACKGROUND
On December 18, 2023, Congressman Thomas Massie filed a
notification and declaration with the Kentucky Secretary of State, seeking
reelection in 2024. One of his witnesses, Theodore “TJ” Roberts, listed his
residential address on the form at East Bend Road, Burlington, Kentucky. In May
of 2023, Roberts’ residence burned down. Roberts posted online that he and his
family would remain at the address and rebuild. In January of 2024, Roberts and
his family returned to their restored and reconstructed home. On February 22,
2024, Deters filed the underlying action under KRS 118.176, challenging Massie’s
status as a bona fide candidate.
Deters argued that since Massie’s notification and declaration listed
Roberts’ residence as East Bend Road, although he slept elsewhere during the
reconstruction, Massie’s declaration was false, thereby invalidating Massie’s
candidacy. The circuit court disagreed, denying and dismissing Deters’ petition.
The circuit court found that while Roberts restored and reconstructed
his home at East Bend Road, he continued to use that address for his mail, voter
registration, vehicle registration, and driver’s license. He also stored personal
property and his animals in the garage and barn at the same address. Between June
18, 2023, and January 10, 2024, Roberts slept at an apartment on Torrid Street in
Burlington, paid for by his homeowners’ insurance policy. The court found that
-2- Roberts’ temporary address was also located within the Fourth Congressional
District and the 66th Kentucky House District, the same district in which Massie
sought to be nominated.
The court ruled that Massie’s notification and declaration were valid
and that Massie shall remain a bona fide candidate. The court held that Roberts
did not lose his residency at East Bend Road based on KRS 116.035(2), which
provides:
A voter shall not lose his or her residence by absence for temporary purposes merely; nor shall he or she obtain a residence by being in a country or precinct for temporary purposes without the intention of making that county or precinct his or her home.
Deters filed this appeal thereafter. He argues the circuit court erred in
concluding the term “residential address” as used on the Secretary of State’s
nomination and declaration form means a place where a person resides, not his
legal domicile. Deters additionally asserts he was denied due process of law and
an opportunity to impeach Roberts’ affidavit listing his residential address as East
Bend Road.
STANDARD OF REVIEW
This appeal comes before the Court upon the circuit court’s
conclusions of law and interpretation of KRS 118.176 and KRS 116.035.
Accordingly, the circuit court’s order is subject to de novo review. Hardin v.
-3- Montgomery, 495 S.W.3d 686, 694 (Ky. 2016) (citing McClendon v. Hodges, 272
S.W.3d 188, 190 (Ky. 2008)). With this standard of review in mind, we will
address Deters’ arguments separately.
ANALYSIS
Roberts’ Residential Address
Deters’ argument that the Secretary of State’s form required Roberts’
temporary residential address, rather than his permanent residential address, is
without merit. KRS 118.125(2)1 mandates that a notification and declaration “shall
be signed by the candidate and by not less than two (2) registered voters of the
same party from the district or jurisdiction from which the candidate seeks
nomination.” The requirements to be a registered voter in Kentucky are located in
KRS 116.025(1):
Every person who is a citizen of the United States, a resident of this state, and a resident of the precinct in which he or she offers to vote on or before the day preceding the closing of the registration books for any primary, general, or special election, who possesses on the day of any election the qualifications set forth in Section 145 of the Constitution,[2] exclusive of the
1 In interpreting Kentucky Revised Statutes (KRS) 118.125, we must construe the statute as a whole so that all its provisions have meaning and harmonize with related statutes. Jefferson Cnty. Bd. of Educ. v. Fell, 391 S.W.3d 713, 718-19 (Ky. 2012) (quoting Shawnee Telecom Resources, Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011)). We also presume that the General Assembly did not intend for an absurd or unconstitutional result. Id. 2 Section 145 of the Kentucky Constitution provides: “Every citizen of the United States of the age of eighteen years who has resided in the state one year, and in the county six months, and the precinct in which he offers to vote sixty days next preceding the election, shall be a voter in said -4- durational residency requirements, who is not disqualified under that section or under any other statute, and who is registered as provided in this chapter, may vote for all officers to be elected by the people and on all public questions submitted for determination at that election, in the precinct in which he or she is qualified to vote. Any person who shall have been convicted of any election law offense which is a felony shall not be permitted to vote until his or her civil rights have been restored by executive pardon.
(Emphasis added.)
“A voter’s residence shall be deemed to be at the place where his or
her habitation is, and to which, when absent, he or she has the intention of
returning.” KRS 116.035(1) (emphasis added). Moreover, “[a] voter shall not
lose his or her residence by absence for temporary purposes merely[.]” KRS
116.035(2) (emphasis added).
Deters argues “[b]ecause the law requires two witnesses who reside
and vote in the Congressional District. [sic] There is no requirement they have
legal domiciles in the District.” Appellant’s Brief, at 7. We disagree. “[A] citizen
cannot select for himself a voting place other than the place the law constitutes his
legal home and habitation.” Everman v. Thomas, 303 Ky. 156, 197 S.W.2d 58, 62
(1946) (citing Penny v. McRoberts, 163 Ky. 313, 173 S.W. 786 (1915)). “If he
precinct and not elsewhere[.]” -5- actually lives in one district, he cannot vote in another, unless he resides in the
former merely for a temporary purpose.” Id.
In Bentley v. City of Allen, No. 2007-CA-000189-MR, 2008 WL
612348 (Ky. App. Mar. 7, 2008),3 this Court held that a registered voter in Allen,
Kentucky, who temporarily rented a trailer in Banner, Kentucky, was eligible to
vote in the November 2006 election for the Mayor of the City of Allen. The
registered voter lived with his sister in Allen, received mail in Allen, and his
driver’s license continued to list his Allen address. Id. at *4. He also had no
intention of taking up residence in Banner until after the election. Id.
In the instant appeal, the circuit court found that Roberts listed the
correct residential address as required by KRS 118.035(1). The court further found
that the house fire had not caused Roberts to lose his residence at East Bend Road
and that Roberts’ treatment of the East Bend property demonstrated his intentions
to return there. He collected his mail there; he stored his pets and personal
property there; and he used that address for his vehicle registration, his driver’s
license, and most importantly, his voter registration. Furthermore, the circuit court
found that Roberts’ temporary address was also located within the same district in
which Massie sought his nomination.
3 Cited pursuant to Kentucky Rules of Appellate Procedure (RAP) 41(A) for illustrative purposes only. -6- We hold that Roberts is a registered Kentucky voter whose residential
address was at all relevant times at East Bend Road. We agree with the circuit
court that Roberts did not lose his “residence” as defined by KRS 116.035(1)
simply because he temporarily lived elsewhere during the restoration and
reconstruction of the East Bend Road property. Accordingly, Roberts’ witness
form and affidavit did not invalidate Massie’s candidacy. The circuit court
properly denied Deters’ KRS 118.176 petition.
Discovery and Evidentiary Hearings in KRS 118.176 Proceedings
Next, Deters argues he was denied due process of law because the
circuit court did not allow him an opportunity for discovery or an evidentiary
hearing.
KRS 118.176(2) provides:
The bona fides of any candidate seeking nomination as the nominee of a political party or a nonpartisan or judicial nominee in a primary or election to an office as a member of a political organization, political group, or as an independent in a special or regular election may be questioned by any qualified voter entitled to vote for the candidate or by an opposing candidate by summary proceedings consisting of a motion before the Circuit Court of the judicial circuit in which the candidate whose bona fides is questioned resides. An action regarding the bona fides of the nominee of a political party or a nonpartisan or judicial nominee may be commenced at any time prior to the primary. An action regarding the bona fides for election to an office as a member of a political organization, political group, or as an independent may be commenced at any time prior to a -7- special or regular election. The motion shall be tried summarily and without delay. Proof may be heard orally, and upon motion of either party shall be officially reported. If the Circuit Judge of the circuit in which the proceeding is filed is disqualified or absent from the county or is herself or himself a candidate, the proceeding may be presented to, heard and determined by the Circuit Judge of any adjoining judicial circuit.
Deters asserts that the Kentucky Rules of Civil Procedure apply to
these proceedings. This is incorrect. “KRS 118.176 is the only statutory method
to challenge a candidate’s bona fides in court before election.” Davis v. Wingate,
437 S.W.3d 720, 726 (Ky. 2014). Where the General Assembly legislatively
mandates procedural requirements in special statutory proceedings, the Kentucky
Rules of Civil Procedure do not apply. As such, the challenger must follow the
statute’s procedures. See, e.g., Brock v. Saylor, 300 Ky. 471, 189 S.W.2d 688
(1945) (holding that election contests and recounts constitute special statutory
proceedings). See also Summary Proceeding, BLACK’S LAW DICTIONARY (11th ed.
2019) (defining “summary proceeding” as “[a] nonjury proceeding that settles a
controversy or disposes of a case in a relatively prompt and simple manner”).
The Civil Rules also recognize the exclusivity of special statutory
proceedings. Kentucky Rules of Civil Procedure (CR) 1(2) provides “[t]hese
Rules govern procedure and practice in all actions of a civil nature in the Court of
Justice except for special statutory proceedings, in which the procedural -8- requirements of the statute shall prevail over any inconsistent procedures set
forth in the Rules.” See also McCann v. Sullivan University System, Inc., 528
S.W.3d 331, 334 (Ky. 2017) (emphasis added) (footnote omitted) (“Absent this
caveat for special statutory proceedings, the Rules of Civil Procedure govern all
civil actions within the Court of Justice.”). Accordingly, the Civil Rules, including
CR 26.01 to CR 37.06, do not apply to summary proceedings under KRS 118.176.
Because the General Assembly directed that a petition under KRS
118.176 shall be a summary proceeding, it intended that a judgment may be
obtained on a motion. Furthermore, it did not permit discovery or evidentiary
proceedings unless ordered so by the circuit court.
CONCLUSION
For the foregoing reasons, the final order of the Lewis Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE THOMAS MASSIE:
David Lee Drake Christopher D. Wiest Independence, Kentucky Covington, Kentucky
Thomas B. Burns Cincinnati, Ohio -9-