Request By:
Honorable Mitchell McConnell
County Judge/Executive
Jefferson County
County Court House
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of April 14 in which you relate the following facts and questions:
"This office has been contacted by a group of Jefferson County citizens with reference to returning Jefferson County to the magistrate form of government. As I read the law, I am obligated to have the matter placed on the ballot pursuant to KRS 67.050. Regretably, 1978 General Assembly failed to pass legislation that would delineate how the transition would occur and what effects the transition would have on existing constiutional office holders, if the referendum were to pass. This is a matter of considerable urgency for Jefferson County, since the matter, in all likelihood, will be on the ballot in 1978 and time for intelligent discussion on the issues must be provided.
"Specifically, I request your opinion to the following questions:
"1. If Jefferson County votes this November, 1978, pursuant to KRS 67.050(3), to return to a magistrate form of government, when would the transition take place?
"2. Again, if transition takes place pursuant to vote under KRS 67.050(3), what effect does this have on the terms of office and powers of the A, B and C District Commissioner (A District Commissioners having been elected for a 4-year term in 1977; B and C District Commissioners being up for election in 1979)?
"3. In the light of Section 144 of the Kentucky Constitution and KRS 67.040(1), may a fiscal court, during the period of transition from a commissioner to magistrate form of government be composed of a combination of county commissioners and justices of the peace?
"4. May the petition asking for a referendum on the return to the magistrate form of government (or the question appearing on the ballot in such a referendum) specify a number of magistrates on the fiscal court other than the number serving at the time of the submission of the petition and the subsequent referendum?
"5. If commissioners appointed by the county judge/executive pursuant to HB 48 (1978 Regular Session) reapportion justices' districts and create more districts than existed prior to reapportionment, are justices in the additional districts elected at the next general election, Section 99 of the Constitution notwithstanding?"
In response to your initial question, the right of Jefferson County to return to the magisterial form of government pursuant to KRS 67.050(3) was approved in the case of Hollenbach v. Carter, Ky., 516 S.W.2d 336 (1974). Subsection (3) of KRS 67.050 simply provides that any county that has voted in favor of having county commissioners may return to its prior form of government following the same procedures as provided in subsections (1) and (2) by which it chooses to have county commissioners.
Subsections (1) and (2) do not indicate any transition period between an affirmative vote on the question and the effective date of the change such as that found under KRS 67.060 pertaining to the change to the commission form of government which could not apply in any event. As a consequence, we believe that a favorable vote on the return to the magisterial form of government would take effect immediately following the official certification of the vote by the county board of elections.
In response to your second question, county commissioners are specifically named in § 144 of the Constitution and are therefore constitutional officers entitled to serve out the remainder of their terms as held in the case of Payne v. Davis, 254 S.W.2d 710 (1953), from which we quote the following:
". . . Neither the General Assembly nor any city legislative body may abolish an office designated eo nominee in the Constitution or reduce the term of such an office. Cawood v. Hensley, Ky., 247 S.W.2d 27, cited above; Black v. Sutton, 301 Ky. 247, 191 S.W.2d 407; Pinkston v. Watkins, 186 Ky. 365, 216 S.W. 852."
See also the case of Anggelis v. Land, 371 S.W.2d 857 (1963). Incidently, the Payne case involved a referendum resulting in the city of Hopkinsville changing from a commission back to a councilmanic form of government.
We might also add that any vacancy occurring among the presently elected commissioners must be filled by appointment, subject to an election under the terms of § 152 of the Constitution. See Cawood v. Hensley, 247 S.W.2d 27 (1952).
Our response to your third question, in light of our answer to your second question, would be in the affirmative. This means that in our opinion the fiscal court would be composed of the three (3) elected commissioners presently serving as the fiscal court until their respective terms expire, together with the three (3) magistrates presently serving as such, pursuant to their election in 1977 in conformance with § 99 of the Constitution and KRS 25.690 limiting the number of magistrates in Jefferson County to three (3). Of course, KRS 25.690 was apparently repealed by mistake at the Extra Session in 1976 but is now superseded by House Bill 48 which permits Jefferson County to be reapportioned into not less than three (3) nor more than eight (8) justices' districts.
The combination of the offices of the three (3) county commissioners and the three (3) magistrates would create a seven (7) member fiscal court, including, of course, the county judge, which we might add is still within the constitutional maximum of eight (8) as provided in § 142 of the Constitution and House Bill 48. As each term of the three (3) commissioners expires, the fiscal court would be reduced in number accordingly.
Our response to your fourth question would be in the negative on the grounds that to have to vote at the same time on the question of changing the form of government and reapportioning the magisterial districts would be too confusing to the voters as held in the case of Tanner v. Vogel, 261 S.W.2d 671 (1953). This case involved the right to place on the ballot at the same time the questions of abandoning the commission form of government and the adoption of the city manager form of government. We also might point out that your question involves two separate statutory referendum procedures [HB 48 and KRS 67.050] which would mean that there must be two (2) separate questions on the ballot at the same time.
In response to your fifth question, any reapportionment of magisterial districts must, of course, follow House Bill 48 which now permits up to eight (8) magistrates. If, upon reapportionment, more than three (3) magisterial districts are established [the present number], vacancies are automatically created in the new districts at the time the reapportionment becomes effective, and those vacancies must be filled by appointment of the Governor until an election can be held for the unexpired term, or terms, pursuant to § 152 of the Constitution. See OAG 78-98 [copy attached].
In view of the lack of adequate legislation covering some of the above questions, they obviously would be subject to litigation.