Request By:
Hon. Harold Kirby
Madison County Judge Executive
Courthouse
Richmond, Ky. 40475
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written to us in reference to the reapportionment of the magisterial districts in Madison County, Kentucky. You inquire as to the duties, responsibilities, and obligations of the county judge executive to initiate these proceedings. Specifically, you ask if it is your responsibility as county judge executive to initiate such proceedings.
House Bill 48, which deals with the reapportionment of justices' districts, was enacted by the regular session of the General Assembly in 1978. That bill deals with the entire procedure to be followed.
You ask the question as to where the reapportionment will take place. Under the bill in counties where the members of the county fiscal court are elected by districts, and the magisterial system is being used, the boundaries of those districts shall be drawn so that the population of each district shall be as nearly equal as is reasonably possible. That provision was enacted in order to conform to the one man, one vote principle enunciated by the Supreme Court of the United States. See Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). That principle was applied to county government in Avery v. Midland County, Texas, 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114 (1968). The population equality principle is brought into sharp perspective by the Court of Appeals in East v. Bell, Ky.App., 557 S.W.2d 424 (1977), at p. 426:
"Avery v. Midland County, Texas, * * * stands for the proposition
that the Constitution permits no substantial variation from equal population in drawing districts for units of local government having general governmental powers over the entire geographic area served by the body."
The question arises as to when reapportionment may be effected. Under the bill the justices' districts of a county may be reapportioned at any time, but not within 120 days prior to any primary election for justice of the peace. At minimum, the justices' districts of a county must be reapportioned within 6 months following the official report to the states of the data from the latest census of population conducted by the United States government. Under this new legislation it would also appear that a reapportionment would be indicated if at any time it reasonably appears that there is a substantial variation from equal population in the magisterial districts.
You raise the question as to who may initiate a reapportionment proceeding. Any inhabitant or citizen of the county, who is at least 18 years of age, may file an application for reapportionment with the county judge executive. We find that there is no affirmative obligation or duty on the part of the county judge executive to actually file an application for reapportionment. Once an application for reapportionment has been filed with the county judge executive, the new law requires that he shall publish notice of the filing of such application in accordance with KRS Chapter 424. See specifically KRS 424.130(1)(a). Following such notice, the county judge executive must, within 60 days, in fiscal court, appoint 3 competent citizens of the county over 21 years of age, and residing in different justices' districts, as commissioners to reapportion the county into not less than 3 nor more than 8 justices' districts. Such appointments should take the form of a county judge executive executive order, which should be filed for record with the county clerk. This latter provision is really in implementation of Section 142 of the Kentucky Constitution. That Section provides that no county shall have less than 3 nor more than 8 justices' districts. See Felts v. Linton, 217 Ky. 365, 289 S.W. 312 (1926), 313.
Under the express wording of House Bill 48, Section 1(3), the legislature has delegated to the commissioners the discretion of determining the precise number of justices' districts to be laid out under the reapportionment. The commissioners, before they can act, must be sworn to faithfully perform their duties. They take such oath before the county judge executive. The fiscal court has to provide reasonable compensation for such services of the commissioners, payable out of the county treasury.
The commissioners must, within 60 days after their appointment, lay off the boundary lines of the districts. Then they are required to file in the office of the county clerk a written report, showing the boundary of each district and the estimated population in each. While the legislation does not expressly provide for this, it is our view that the commissioners should at the same time file a copy of the report of reapportionment with the district court of the county involved. In a county containing two or more district judges, such report should be filed with the chief district judge of that county.
Not later than 20 days after the filing of the report, any citizen of the county may file exceptions in the district court. Upon the filing of such exceptions, the district court must fix a day not later than 10 days after the filing of exceptions for the trial thereof. On the trial the district court shall dispose of exceptions and, by an order entered of record, establish the boundaries of the districts.
Precinct lines must be redrawn when necessary in accordance with the provisions of KRS 117.055.
Any reapportionment judgment entered in the district court in accordance with the provisions of this Act must be certified by the county judge executive to the county clerk. This simply means that the county judge executive should procure an attested copy of the judgment of the district court in the reapportionment proceeding and then certify the fact of the entry of such judgment to the county clerk, who will thereupon file and record such order of the court and the certificate of the county judge executive.
House Bill 48 became effective on March 30, 1978, the date the bill was signed by the Governor.