An attempt to disqualify two candidacies for positions on the Crescent Springs City Council was struck down by a local judge on Monday following a legal battle dating back to June.
Specifically, Kenton County Circuit Court Judge Kathy Lape overruled a motion in a lawsuit challenging the bona fides of candidates Chad Longbons and Carol McGowan, the latter of whom is an incumbent. Longbons has also sat on the council in the past.
The suit dates back to the end of June when city resident Robert Flaherty alleged that Longbons and McGowan had violated legal procedures around petitioning to run for office. Kentucky law requires people running for local office to gather at least two signatures from registered voters in the area where they’re running to be considered official candidates.
Flaherty’s initial motion points to a section in Kentucky law that states, “if any person joins in nominating, by petition, more than one nominee for any office to be filed, he or she shall be counted as a petitioner for the candidate whose petition is filed first.”
Longbon’s, McGowan’s and Patrick Hackett’s, another candidate who formerly sat on the council, petitions all contain signatures from Deborah Noe, yet another former council member and Hackett’s wife. Each petition holds only one other signature. Hackett’s petition contains McGowan’s, and both Longbon’s and McGowan’s contain Hackett’s.
Court documents indicate that Hackett filed his paperwork before the other candidates, so Flaherty’s motion contends that Noe’s signature on the remaining petitions is invalid. As such, the suit contends that McGowan and Longbons failed to follow the prerequisite requirements for candidacy and their names should not appear on the November ballot.
“The petitions of the defendants, Carol McGowan and Chad Longbons, only have one petitioner and they are not bona fide candidates to have their names printed on the official ballot of Kenton County at the regular election to be held on Nov. 5, 2024 as candidates for the office of City Council of the City of Crescent Springs,” Flaherty’s motion states.
In the legal battle that ensued, attorneys argued over whether language in the relevant part of Kentucky law fell into one of two legal categories: directory and mandatory requirements of a law. Mandatory requirements are essential to the legal process they relate to. If one breaks a mandatory requirement, it delegitimizes the entire process. A directory requirement is more like a guideline, so breaking it doesn’t necessarily undermine the legal process in question.
In this case, if the petitioner requirement is deemed mandatory, then failing to follow it would, in essence, corrupt the electoral process, disqualifying any candidates who broke the requirement from running.
Argumentation about whether part of a statute is directory or mandatory often comes down to arguments about language and intent.
Words like ‘shall’ tend to indicate mandatory requirements. Words like ‘may’ tend to indicate directory requirements, but courts also consider the overall aim of a particular law: What’s it trying to accomplish? What was the intent of the legislature when they passed it?
Longbon’s and McGowan’s answer to Flaherty, which they filed on July 15, argues that the signature requirement is directory. They cite cases from throughout Kentucky’s history in an effort to rebut his claim.
For instance, one case from 1936, Skaggs v. Fyffe, argues “if a statute simply provides that certain acts or things shall be done within a particular time or in a particular manner, but does not declare or indicate that their performance is essential to the validity of the election, they will be regarded as directory if they do not affect the actual merits of the election.”
Other cases are cited as well, indicating that this not the first time something like this has happened in Kentucky.
Flaherty fired back on July 26, where he argued that the wording of the statute is too unambiguous to be considered directory, citing other Kentucky cases to make his argument.
Pulling from one 2009 case, MPM Fin. Group, Inc. v. Morton, Flaherty’s attorney argues, “when the words of a statute ‘are clear and unambiguous and express the legislative intent, there is no room for construction or interpretation and the statute must be given its effect as written.'”
Moreover, the response states, “The words in the last sentence of [the law] are clear and unambiguous, and nothing in the context of that statute provides otherwise. Accordingly, the word ‘shall’ in the last sentence of [the law] must be interpreted as mandatory unless the legislative intent is that it should be interpreted as directory.”
Judge Lape, who was assigned to the case, wasn’t convinced by Flaherty’s arguments.
In a judgment order from Aug. 1, Lape writes that the intent of the law “is that candidates seeking election are to be nominated by a prescribed number of eligible voters from his/her jurisdiction” and that Kentucky law has generally favored allowing candidacies to continue whenever possible.
Lape writes elsewhere in her judgment the relevant law “does not state a candidate will be disqualified if one of his/her petitioners nominates more than one candidate.”
Flaherty did not accept this and filed a motion asking Lape to reconsider her judgment on Aug. 8. At a hearing on Monday, Aug. 12, which was attended only by the parties’ attorneys, Lape upheld her original judgment, overruling Flaherty’s motion.
Longbons described the whole ordeal to LINK nky as a “150-page waste of time” and “a prime example of why good people don’t want to serve in public office.”
Hackett agreed.
“He [Flaherty] is very, very angry, and I don’t know why,” Hackett said.
“I question his [Flaherty’s] motive, and I question, why doesn’t he run for council?” McGowan said, pointing out that Flaherty is a frequent attendant and speaker at public meetings.
This was also not the first time Flaherty had brought legal action against Crescent Springs or its candidates. In 2023, he filed a complaint with the Kentucky Attorney General’s Office alleging the city had failed to comply with open meetings laws for not releasing annual budget documents to him before they’d been presented to the city council. The Attorney General denied his complaint.
Hackett, Longbons and McGowan were all baffled as to why Flaherty would spend such time and effort (and money) on legal challenges.
“I find him to be a deterrent for the people he doesn’t like for whatever reason,” McGowan said. “I’d like for him to name one thing that he doesn’t like about me or that I did to him personally. Did I vote one way or another that he didn’t like? That’s possible. Is that worth an attack in court? I don’t think so.”
Flaherty declined to comment until after the trial had concluded when asked about his motives.
He has thirty days to appeal Judge Lape’s decision to a higher court.