Request By:
Mr. Richard C. Short
Magistrate - District 3
Olive Hill, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Application for reapportionment of the justices' districts in your county has been filed pursuant to KRS 25.680, 25.690, and 25.700. The three commissioners [KRS 25.690] have been appointed.
You ask how it must take place. KRS 25.690 requires that the districts in the reapportionment must be as nearly equal in territory and population as may be. This follows the one man, one vote principle handed down in Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964); and Avery v. Midland County, 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114 (1968). Population equality is the overriding factor. The latest federal census on population should be resorted to.
We are enclosing a copy of OAG 68-178 on this general subject.
You ask whether there is any appeal from the county court's ruling on exceptions filed to the commissioners' report, and where he approves the reapportionment. See KRS 25.700.
It can be noted that KRS 23.030(2) particularizes the kinds of judgments that are appealable. They include certain disputed claims for money, judgments and orders in bastardy and fiduciary settlement cases, orders granting or refusing letters testamentary or administration or appointing, refusing to appoint or remove curators, guardians, trustees or committees of estates, and judgments in proceedings to condemn land. See Shreve v. Taylor County Public Library Board, Ky., 419 S.W.2d 779 (1967) 781. Thus KRS 23.030 seems to make no provisions for an appeal from the county court's order of reapportionment to circuit court. However, an appeal would lie if it could be shown that the county court acted arbitrarily in proceeding to judgment in this special proceeding. See § 2, Kentucky Constitution, and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1964) 257. In Pritchett the court enunciated the rule that, even where the statute does not provide for a court review or appeal, an appeal will lie where constitutional rights [due process, equal protection of the laws, fundamental fairness and impartiality] are claimed to have been violated.
In addition a writ of prohibition in the circuit court will lie where it is shown that the county court was not acting within his jurisdiction. This can happen where he does not follow the statutes as to notices, time for apportionment, and the provision that reapportionment cannot be within 60 days previous to the primary election for justice of the peace, etc. See Wilson v. Dean, 177 Ky. 97, 197 S.W. 547 (1917) 552; and Stephens v. Hicks, Ky., 401 S.W.2d 75 (1966) 77.
In answer to your last question about who tries the exceptions to the commissioners' report, the answer is: "the county court", which simply means the county judge. The fiscal court has nothing to do with it. "The jurisdiction of the county court [county judge] in the matter of reapportioning the county, in which it sits, into justices' districts is exclusive and complete, and as unlimited as the nature of the matter will admit of it." Wilson v. Dean, above, p. 550.