Wednesday, April 2, 2003

Judge: Fletcher free to choose

No injunction, but he still could be booted from ballot

By Charles Wolfe
The Associated Press

FRANKFORT - A judge Tuesday refused to issue an injunction to prevent Republican gubernatorial candidate Ernie Fletcher from selecting a new running mate to replace the disqualified Hunter Bates.

Still to be decided is the basic court case - the claim of a rival slate, Steve Nunn and Bob Heleringer, that Fletcher himself should be booted off the ballot for the May 20 primary election.

Franklin County Circuit Judge William L. Graham said they failed to meet one of three requirements for an injunction - a showing that they are likely to win at trial on their claim that Fletcher disqualified himself as a candidate by selecting a running mate who was never eligible to run.

"You have not convinced me that you have a substantial chance of prevailing on the merits," Graham said at a hearing.

Heleringer, who was in the courtroom, said he wanted to consult with Nunn before deciding whether to appeal the denial. .

One of his attorneys, Tom Hectus of Louisville, said he would try to bypass the Court of Appeals and go directly to the Kentucky Supreme Court if an appeal was pursued.

Bates, of Goshen, was ordered off the ballot last week. A judge in Oldham County ruled in a lawsuit that Bates had lived for most of the last six years in Alexandria, Va., not in Kentucky as the state constitution requires of candidates for governor and lieutenant governor.

Bates, a native of Whitley County, worked for about three years in a Washington law firm, then joined the staff of U.S. Sen. Mitch McConnell, R-Ky. Bates argued unsuccessfully that Alexandria was his "mailing address," never his home.

Heleringer - the Nunn campaign itself was not officially a part of the case - wanted an injunction to prevent Secretary of State John Y. Brown III from allowing Fletcher to register a new running mate.

To do otherwise would be "the functional equivalent of leaving a blank in there and then allowing Mr. Fletcher to come back and fill in the blank," Hectus, the attorney, told Graham.

As for Bates, "it can hardly be argued that he was qualified in January and unqualified in March," Hectus said.

One of Fletcher's attorneys, Brad Cowgill of Lexington, said Bates' disqualification was not a "condition of ineligibility" that existed at the time he and Fletcher registered as a slate.

Disqualification is a specific act, Cowgill said. "The act of disqualifying occurred last week" with the ruling by Oldham County Circuit Judge Paul Rosenblum, Cowgill said.

Graham said he agreed that Bates' residency was "an arguable circumstance."

An injunction might have been a knockout blow for Fletcher. But it is an extraordinary order for a court, and Kentucky law requires people asking for an injunction to show three things: that they could suffer "immediate and irreparable harm" without an injunction; that the legal problem was not of their own making; and that they probably would win their case at trial. Graham said Heleringer met the first two conditions but not the third.

Fletcher said he welcomed Graham's ruling. He felt "more assured that we'll hold this election in the polling booth rather than in a court room," Fletcher said.

Also at the hearing:

• Sam Manly, another of Heleringer's attorneys, argued that the statute governing substitution of a slate candidate was unconstitutional.

• Virgil Moore, another of the four Republican gubernatorial candidates, told Graham he wanted to replace his own running mate, Don Bell of LaGrange, if Fletcher was permitted to pick a substitute.

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