RENDERED: APRIL 14, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-1485-MR

ASHLEY AHRENS APPELLANT

v. 

APPEAL FROM OLDHAM CIRCUIT COURT

HONORABLE JERRY CROSBY, II, JUDGE

ACTION NO. 22-CI-00498

DANIEL FENDLEY; HENRY 

COUNTY BOARD OF ELECTIONS; 

MICHAEL G. ADAMS, IN HIS 

OFFICIAL CAPACITY AS 

KENTUCKY SECRETARY OF 

STATE; OLDHAM COUNTY BOARD 

OF ELECTIONS; KENTUCKY STATE 

BOARD OF ELECTIONS; AND 

TRIMBLE COUNTY BOARD OF 

ELECTIONS APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND EASTON, JUDGES.
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COMBS, JUDGE: This appeal comes before the Court from an order entered on 

December 16, 2022, dismissing a petition under KRS1 118.176 filed by Appellant,

Ashley Ahrens (Ahrens or Appellant), to disqualify Appellee Daniel Fendley 

(Fendley or Appellee) as a bona fide candidate in the general election for the office 

of district judge of the 12th Judicial District, Division 1. The order of December 

16, 2022, also denied Ahrens’s petition for a declaration of rights seeking to 

declare that KRS 118.176 is unconstitutional. After our review, we affirm. 

I. BACKGROUND

Appellant, Ashley Ahrens, and Appellee Daniel Fendley ran as

opposing candidates for the office of district judge of the 12th Judicial District, 

Division 1. Fendley received the most votes in the general election held on 

November 8, 2022. He now holds that office. 

On October 21, 2022, Ahrens petitioned the Oldham Circuit Court to 

disqualify Fendley as a bona fide candidate pursuant to KRS 118.176 on the 

ground that he did not meet the two-year residency requirement set forth in Section 

122 of the Kentucky Constitution.2 Fendley moved to dismiss the petition as 

1 Kentucky Revised Statutes. 

2 Ahrens claims she could not challenge Fendley’s bona fide qualifications before the primary as 

required by KRS 118.176(2) because she did not discover Fendley’s qualifications -- or lack 

thereof -- until after the statute’s timeframe had elapsed.
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untimely, asserting that KRS 118.176(2) required that Ahrens file her bona fides 

challenge prior to the May 2022 primary. 

On October 26, 2022, Ahrens moved the circuit court to allow 

amendment of her petition to include a constitutional challenge to KRS 118.176(2), 

which had been amended in 2021, as well as a petition for a declaration of rights

that KRS 118.176 is unconstitutional. Ahrens noticed the motion for hearing on 

November 4, 2022, four days prior to the general election. 

On December 16, 2022, the circuit court denied Ahrens’s petition to 

dismiss Fendley as a candidate for district judge. The circuit court also denied 

Ahrens’s petition for a declaration of rights that KRS 118.176 was 

unconstitutional.

3

 Ahrens asked the circuit court to interpret KRS 118.176 to allow 

for a challenge to be brought before the general election as opposed to before the 

primary election, especially when the bona fides being challenged are required to 

be met by the Kentucky Constitution. According to Ahrens, any other 

interpretation would allow for an unqualified candidate to be seated as a judge. 

The circuit court observed, “this argument has been made as far back 

as 1985 when the Kentucky Supreme Court mandated that challenges to the bona 

3 On December 16, 2022, Ahrens filed a notice of appeal from the order of December 16, 2022, 

and then she filed a motion to transfer the above-styled appeal to the Kentucky Supreme Court 

on December 21, 2022. The Kentucky Supreme Court denied her motion to transfer on February 

16, 2023. 
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fides of a judicial candidate needed to be brought prior to the primary election 

under its interpretation of a prior and similar version of KRS 118.176.” Record 

(R.) at 725-26 (referring to Noble v. Meagher, 686 S.W.2d 458 (Ky. 1985)). The 

circuit court then extensively quoted this Court’s recent decisions regarding

untimely bona fides challenges, Witten v. Foster, No. 2022-CA-1238-EL (Oct. 28, 

2022) (order granting motion to set aside) and Fightmaster v. Johnson, No. 2022-

CA-1131-EL (Oct. 17, 2022) (order denying motion to set aside). R. at 726-27. 

The circuit court ultimately determined as follows:

As noted by the higher courts, the legislature could 

have declined to place a deadline for the challenge of the 

bona fides but instead chose to insert it into the revised 

statute. Both the legislative intent and plain language of 

KRS 118.176(2) mandate that a challenge to the bona 

fides of a judicial candidate must be filed before the 

primary election. Therefore, [Ahrens’s] petition is not 

timely and her claim to disqualify Fendley as a candidate 

for the judicial position due to residency must fail.

R. at 729. 

Ahrens then asked the circuit court to hold that KRS 118.176 is 

unconstitutional on the grounds that it violates the equal protection guarantees of 

both the state and federal constitutions because it creates unequal and irrational 

classifications of groups by fixing two different filing deadlines. The circuit court 

ruled that “the Commonwealth has made clear there exists a strong public policy 

‘in favor of broad voter participation’ in elections, thus requiring any doubt in 
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statutory interpretation to ‘be resolved in favor of allowing the candidacy to 

continue.’” R. at 732-33 (quoting Heleringer v. Brown, 104 S.W.3d 397, 403 (Ky. 

2003)). The court reasoned:

To allow two candidates to advance past primary only to 

have one deemed ineligible at the last moment due to a 

technical challenge subverts a voter’s freedom of choice 

and increases the risk of gamesmanship on behalf of 

candidates. This reason alone is a rational basis for the 

requirement that challenges made to the bona fides of a 

judicial candidate must be made prior to the primary.

R. at 733. 

Ahrens also claimed that KRS 118.176 is unconstitutional because it 

could allow an unqualified candidate to be elected and serve as a judge or justice

simply because the disqualification did not present itself until after the primary, 

thus violating Section 122 of the Kentucky Constitution. Contrary to Ahrens’s 

assertions, the circuit court ruled that KRS 118.176(2) does not abolish or subvert 

the constitutionally mandated requirements for a judicial candidate. R. at 735. 

Rather, it found that KRS 118.176(2) “is merely a procedural mechanism wherein 

a voter or another candidate may challenge the bona fides of a candidate.” R. at 

75. The court concluded that the statute “is not in conflict with § 122 because it

does not negate the requisites for holding office in this state.” Id. It then reasoned 

that “[a]fter Judge-Elect Fendley takes the oath of office, [Ahrens], the Attorney 

[G]eneral, and the Commonwealth Attorney have the opportunity to bring an 
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action under the usurpation statutes if they have a legitimate reason to believe he is 

holding the office without the proper qualifications.” R. at 736. 

On appeal, Ahrens presents primarily three arguments. First, she 

asserts that KRS 118.176 modifies the residency requirement of Section 122 of the 

Kentucky Constitution. Second, she contends that KRS 118.176 is 

unconstitutional because it violates Section 34 of the Kentucky Constitution, the 

state equivalent of the federal Equal Protection Clause. Lastly, she argues that 

KRS 118.176 is permissive rather than mandatory, thus demonstrating that a bona 

fides challenge against a judicial nominee does not have to be filed before the 

primary. We will address each of Ahrens’s arguments below.

II. STANDARD OF REVIEW

This appeal comes before the Court upon the circuit court’s 

conclusions of law and interpretation of KRS 118.176. Accordingly, the circuit 

court’s order is subject to de novo review. Hardin v. Montgomery, 495 S.W.3d 

686, 694 (Ky. 2016) (citing McClendon v. Hodges, 272 S.W.3d 188, 190 (Ky.

2008)).

4 Kentucky Constitution Section 3 provides in part, “All men, when they form a social compact, 

are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to 

any man or set of men, except in consideration of public services[.]”
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III. ANALYSIS

A. KRS 118.176 and Section 122

Ahrens asserts that KRS 118.176 as amended in 2021 by House Bill 

574 is unconstitutional because it “allowed the Legislature to trump the 

constitutional residency requirement mandated by KY. CONST. § 122 for judicial 

candidates by shortening the time for bona fides challenge.” Appellant’s Brief at 

8. She argues that requiring a bona fides challenge to be brought before the 

primary effectively reduces the two-year residency requirement of Section 122 to 

one and one-half years. 

Section 122 of the Kentucky Constitution requires that “[t]o be 

eligible to serve as . . . a judge of the . . . District Court a person must . . . have 

been a resident of this Commonwealth and of the district from which he is elected 

for two years next preceding his taking office.” As we have previously held in 

Dusing v. Halloran, “we hold the language ‘eligible to serve’ relates to the time a 

judicial candidate is ‘about to hold or assume the office[.]’” Dusing v. Halloran, 

No. 2022-CA-0400-EL, at p. 7 (May 10, 2022) (order granting motion to set aside) 

(quoting Kirkpatrick v. Brownfield, 97 Ky. 558, 564, 31 S.W. 137, 138, 17 Ky. L. 

Rptr. 376 (1895)). Furthermore, a judicial candidate may only “serve” as a judge 

once he or she has been elected to office, the election results have been certified, 

and he or she has been duly sworn in. See generally KRS 118A.190; KRS 62.010. 
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According to our decision in Dusing, a judge-elect could possibly satisfy the twoyear residency requirement after having been elected but before serving and taking 

his or her office. If eligibility were required at all stages of the candidacy, the 

framers of our modern constitution could have selected “words . . . to make the 

meaning indisputable.” Kirkpatrick, 97 Ky. at 563, 31 S.W. at 138. Therefore, 

KRS 118.176 does not effectively reduce the residency requirement of Section 122 

because a perceived disqualification could be cured after the election but before 

taking office.

Ahrens further contends that the 2021 amendment of KRS 118.176 

“allows a candidate to conceal their lack of constitutional bona fides until the 

primary and then be statutorily immune from their constitutional defects since 

[KRS] 118.176 is the sole avenue of challenging constitutional and statutory bona 

fides for candidates.” Appellant Brief at 9 (citing Noble, 686 S.W.2d at 462). This 

argument, however, is based on the faulty premise that KRS 118.176 is the only 

mechanism to enforce Section 122. 

As the circuit court also noted, in Noble v. Meagher, the Kentucky 

Supreme Court observed as follows:

Kentucky law provides that [the judicial candidate], as 

well as the Attorney General and the Commonwealth 

Attorney for the district all have standing to bring an 

ouster action under the usurpation statute, KRS 
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415.030,[5] 415.040,[6] 415.050,[7]if they have legitimate 

grounds to believe the [judge-elect] is holding the office 

of district judge without the proper qualifications. 

686 S.W.2d at 462. Thus, KRS 118.176 is not the only mechanism to enforce the 

constitutional qualifications of Section 122. Contrary to Ahrens’s assertions, if a 

candidate is elected but unqualified to hold public office, that individual can be 

removed from office through an ouster action. See KRS 415.030. In other words, 

if a candidate is “ineligible to hold an office, he becomes, when inducted into it, a 

usurper, and the law provides a distinct and exclusive remedy for his removal, 

which must be pursued.” Leigh v. Commonwealth, 203 Ky. 752, 755, 263 S.W. 14, 

15 (1924).

Moreover, “[v]otes cast for the unqualified candidate lack the import 

of those cast for a qualified candidate, as each vote could under no circumstances 

result in the placement of the candidate in the desired office.” Stephenson v. 

Woodward, 182 S.W.3d 162, 174 (Ky. 2005), as modified (Jan. 19, 2006). “When 

a candidate who is constitutionally unqualified to take office nonetheless presents 

5 KRS 415.030 provides, “If a person usurp[s] an office or franchise, the person entitled thereto, 

or the Commonwealth, may prevent the usurpation by an ordinary action.” 

6 KRS 415.040 provides, “It shall be the duty of the several Commonwealth attorneys to institute 

the actions mentioned in this chapter against usurpers of county offices or franchises, if no other 

person be entitled thereto, or if the person entitled fail to institute the same during three (3) 

months after the usurpation.”

7 KRS 415.050 provides, “For usurpation of other than county offices or franchises, the action by 

the Commonwealth shall be instituted and prosecuted by the Attorney General.”
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him or herself as a qualified candidate eligible for election and office, that 

candidate has not only misled the electorate but also engaged it in a futile 

endeavor.” Id. Therefore, if it should be determined through an ouster action that 

Fendley was not a resident for two years of the district to which he was elected 

before taking office, then the votes cast for him during the 2022 general election 

would have no significance. A constitutionally unqualified candidate cannot serve 

in an elected office to which he or she has no entitlement. Accordingly, we reject 

Ahrens’s argument that the General Assembly’s 2021 amendment of KRS 118.176 

somehow modifies the mandates of Section 122. 

B. KRS 118.176 Mandates that a Bona Fides Challenge Against a Judicial 

Nominee Be Filed Before a Primary 

Next, Ahrens argues that KRS 118.176 is permissive rather than 

mandatory because the Kentucky General Assembly used “may” instead of “must” 

or “shall” when drafting the statute. Appellant’s Brief at 15. KRS 118.176(2) 

provides, “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.” The language “may be commenced at any time prior to the primary” 

was added by the General Assembly as part of statutory revisions effective June 

29, 2021. See Ky. Acts ch. 197 (H.B. 574) (2021). The prior version of KRS 

118.176(2), enacted in 2010, read, “An action regarding the bona fides of any

candidate seeking nomination or election in a primary, special, or regular election
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may be commenced at any time prior to the regular election.” See Ky. Acts ch. 

123 (H.B. 97) (2010). 

“When a statute is amended, the presumption is that the legislature 

intended to change the law.” City of Somerset v. Bell, 156 S.W.3d 321, 326 (Ky. 

App. 2005). In other words, 

[w]here a statute is amended or re-enacted in different 

language, it will not be presumed that the difference 

between the two statutes was due to oversight or 

inadvertence on the part of the Legislature. On the 

contrary, it will be presumed that the language was 

intentionally changed for the purpose of effecting 

a change in the law itself.

Id. (quoting Eversole v. Eversole, 169 Ky. 793, 797, 185 S.W. 487, 489 (1916)). 

Furthermore, we follow the directive of KRS 446.080(4): “All words and phrases 

shall be construed according to the common and approved usage of language[.]” 

KRS 118.176, therefore, evinces an intent by the General Assembly to change the 

deadline for filing actions to challenge the qualifications of certain candidates from 

“prior to the regular election” to “prior to the primary.”

Both the former and current versions of KRS 118.176 utilize the term 

“may,” which is unextraordinary as actions challenging a candidate’s bona fides 

are never mandated. But in the event of a challenge, we conclude that with the 

2021 amendments to the 2010 statute, the General Assembly changed the 

applicable deadline from “prior to the regular election” to “prior to the primary” 
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for challenges involving a nominee of a political party, a nonpartisan nominee, or a 

judicial nominee.8 

C. KRS 118.176 Does Not Violate Kentucky’s Equal Protection Clause

 Lastly, Ahrens argues that KRS 118.176 is unconstitutional because it 

violates Section 3, which is our state’s equivalent to the Equal Protection Clause in 

the United States Constitution. Specifically, Ahrens claims that KRS 118.176 

creates: 

two distinct classes of bona fides challenges: one class 

which pertains to primaries and includes all political 

party and non-partisan nominees (including judicial 

nominees), and a second class which pertains to all 

special and regular elections but only includes partisan 

and independent nominees. 

Appellant’s Brief at 13. These two “distinct classes of bona fides challenges” do 

not involve similarly situated individuals, however. 

8 Ahrens also argues that KRS 118.176 creates a legal impossibility because it requires a bona 

fides challenge against a “nominee” to be made before the primary even though a candidate does 

not become a nominee until after a primary. See KRS 118A.060(9). Ahrens’s argument

overlooks KRS 446.080(1), which mandates that “[a]ll statutes of this state shall be liberally 

construed with a view to promote their objects and carry out the intent of the legislature[.]” 

Thus, in interpreting KRS 118.176, 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. KRS 118.176 overall refers to the bona fides of a 

candidate who seeks nomination in a primary or election. Although the provisions of KRS 

118.176 could have been more carefully worded, Ahrens’s proposed interpretation would truly 

lead to an absurd and obviously unintended result.
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“[I]n order to determine whether a person is being denied equal 

protection of the laws it is necessary to make a comparison between two people or 

classes of people in relation to their respective enjoyment of the same privilege or 

protection.” Thomas v. Lyons, 586 S.W.2d 711, 713 (Ky. 1979); see also Vision 

Mining, Inc. v. Gardner, 364 S.W.3d 455, 474 (Ky. 2011) (“In considering an 

equal protection challenge, a court . . . must examine whether similarly situated 

individuals have been treated differently in that instance[.]”). Our Supreme Court 

previously determined: 

Persons desiring to run in a regular election as 

independent candidates against assorted party-nominated 

and other candidates are not “similarly situated” with 

persons seeking nomination in a nonpartisan primary 

election, nor are candidates for judicial office, who must, 

of course, meet certain qualifications beyond mere 

residence and supporting signatures.

Lyons, 586 S.W.2d at 713. We agree. 

Ahrens does not complain that KRS 118.176 treats judicial nominees 

differently. Rather, she complains that KRS 118.176 treats judicial nominees 

differently from members of a political organization, political group, or 

independents running in general elections. She claims that the two classes share 

the same commonality of having to be a resident of the district in which they 

would serve. 
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However, a judicial nominee and a member of a political party do not 

enjoy the same privileges. They run for entirely different offices and require 

different support. Consequently, KRS 118.176 does not violate Section 3. And 

even if the enumerated groups within KRS 118.176 could be deemed to be

similarly situated, the different timing requirements of KRS 118.176 do not violate 

Kentucky’s equal protection guarantee. 

“Governmental classifications that do not target suspect classes or 

groups or fundamental interests are subject only to rational basis review.” 

Commonwealth ex rel. Stumbo v. Crutchfield, 157 S.W.3d 621, 624 (Ky. 2005). 

Here, the challenged statute does not affect a suspect class such as race, national 

origin, or alienage. Additionally, it does not inflict injury to Ahrens’s right to 

candidacy because no such constitutional status exists. Mobley v. Armstrong, 978 

S.W.2d 307, 309 (Ky. 1998), as modified (Oct. 22, 1998) (“The right to candidacy 

is not a fundamental right.”); Chapman v. Gorman, 839 S.W.2d 232, 237-38 (Ky. 

1992) (“The federal circuit courts of appeal, under Equal Protection Clause 

analysis, sometimes within the context of First Amendment challenges, as the trial 

court observed, have adhered to Bullock v. Carter, [405 U.S. 134, 143, 92 S. Ct. 

849, 855, 31 L. Ed. 2d 92 (1972)], in holding that there is no fundamental right to 

candidacy.”). Therefore, the rational basis test rather than strict scrutiny is the 

appropriate constitutional standard to analyze KRS 118.176.
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“A person challenging a law upon equal protection grounds under the 

rational basis test has a very difficult task because a law must be upheld if there is 

any reasonably conceivable state of facts that could provide a rational basis for the 

classification.” Crutchfield, 157 S.W.3d at 624. “Our General Assembly, under 

the Equal Protection Clause, has great latitude to enact legislation that may appear 

to affect similarly situated people differently.” Id. Moreover, Section 153 of the 

Kentucky Constitution vests the exclusive power to regulate elections to the 

Kentucky General Assembly. KY. CONST. § 153 (“[T]he General Assembly shall 

have power to provide by general law for the manner of voting, for ascertaining the 

result of elections and making due returns thereof, for issuing certificates or 

commissions to all persons entitled thereto, and for the trial of contested 

elections.”). 

As noted by the Kentucky Supreme Court in Kentucky State Board of 

Elections v. Faulkner, 

The right to hold a primary election for the nomination of 

candidates for office, the right of such nominee to have 

his name appear on the ballot under the device and as the 

candidate of his party, the right of an opposing candidate 

to the one declared to be successful by the boards of

election commissioners empowered to compare the

returns of the primary election and to grant certificates of 

nomination to contest such nomination, are all creatures 

of the statute enacted by the Legislature upon that 

subject. 
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591 S.W.3d 398, 407 (Ky. 2019) (quoting Brumleve v. Cronan, 176 Ky. 818, 197 

S.W. 498, 501 (1917) (emphasis added)). Accordingly, KRS 118.176 comes to us 

bearing a strong presumption of validity. United Dry Forces v. Lewis, 619 S.W.2d 

489, 493 (Ky. 1981) (“We are well aware of the strong presumption of the 

constitutionality of enactments of the general assembly[.]”). 

Although “[t]he laws that affect candidates always have at least some 

effect on voters[,]” Mobley, 978 S.W.2d at 309, “[n]ot all restrictions placed on a 

candidate’s eligibility impose suspect burdens on fundamental rights of voters to 

associate and to choose among candidates.” Chapman, 839 S.W.2d at 238. We 

further note that “[g]enerally, evenhanded restrictions on candidate eligibility that 

serve legitimate state goals, unrelated to First Amendment values, are upheld.” Id. 

The jurisdictional filing time requirements found within KRS 

118.176(2) further a legitimate state interest. The circuit court determined that the 

Commonwealth “has made clear there exists a strong public policy ‘in favor of 

broad voter participation’ in elections, thus requiring any doubt in statutory 

interpretation to ‘be resolved in favor of allowing the candidacy to continue.’” R. 

at 732-33. It further found that the filing time requirements of KRS 118.176 

satisfy a rational basis because they prevent the subversion of a voter’s freedom of 

choice and decrease the risk or opportunity for gamesmanship on behalf of 

candidates. R. at 733. 
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This Court’s predecessor has previously recognized this same 

principle. In Fletcher v. Teater, the Court advocated that “the voting public ought 

not to be duped or confused by the appearance on the ballot of the name of a 

person who has no right for it to be there[.]” 503 S.W.2d 732, 733-34 (Ky. 1974).

As stated in Heleringer v. Brown, “[t]he right of the qualified voter to cast an 

effective vote is among our most precious freedoms.” 104 S.W.3d at 405 (Stumbo, 

J., concurring) (emphasis added). 

For the foregoing reasons, we affirm the circuit court’s order of 

December 16, 2022, entered by the Oldham Circuit Court, dismissing Ahrens’s 

petition to disqualify Fendley as a judicial candidate and finding that KRS 118.176 

is constitutional. Furthermore, we have considered the breadth of Ahrens’s 

remaining arguments and find them without merit or unnecessary to the resolution 

of the issues before the Court. 

ALL CONCUR.
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BRIEFS FOR APPELLANT BRIEF FOR APPELLEE

ASHLEY AHRENS: DANIEL FENDLEY:

J. Gregory Troutman Sarah D. Reddick

Louisville, Kentucky Chase M. Cunningham

Louisville, Kentucky

Jonathan Wells

Ben Wyman

La Grange, Kentucky

Galen L. Clark

Louisville, Kentucky

Michele McKinney

Louisville, Kentucky