Request By:
Mr. Jimmie W. Greene
Mc Creary County Judge/Executive
Courthouse
Whitley City, Kentucky 42653
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have questions about reapportionment of magisterial districts.
Question No. 1:
"If the county judge/executive asked the county attorney to provide legal assistance in filing reapportionment procedures and the county attorney refuses, would it be proper to hire an outside attorney to assist in the process, and, if so, would the fiscal court be responsible for the payment of the attorney's fees and costs?"
The responsibility for initiating reapportionment procedure is placed on the county judge/executive, pursuant to KRS 67.045. The exceptions to the report of the commissioners are heard by the district court. The county judge/executive appoints, in fiscal court, the commissioners to reapportionment. Until the commissioners' report reaches district court, it is an administrative matter as concerns the county judge/executive and the commissioners of reapportionment. Under KRS 69.210(2), the county attorney would be required to advise you in your initiating reapportionment proceedings. If for any valid reason he is unable to so advise you in your part of the reapportionment process, the fiscal court may procure and pay for the services of another attorney for such advice.
Until someone contests the notice of planned reapportionment or files exceptions to the commissioners' report in district court, the proceeding is administrative and ex parte. Wilson v. Dean, 177 Ky. 97, 197 S.W. 547 (1917) 549. A contest of the report makes it an adversary proceeding. See Lippold v. Hagner, 226 Ky. 103, 10 S.W.2d 619 (1928) 620. A magisterial reapportionment is an important county governmental matter, which is necessary to provide the one man, one vote standard [approximately equal population in each district] established by the Supreme Court of the United States. See Avery v. Midland County, 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114 (1968), which specifically applied the principle to county government.
It is our opinion, in view of the county interest in such matter, that the county attorney has a duty, under KRS 69.210, to represent the commissioners' report in the district court, since the commissioners are merely special agents for the county government.
Question No. 2:
"If the fiscal court is responsible for payment of fees and costs, what action should the county judge/executive take to recover such costs?"
This is really a county matter. The county will have to pay any fees or court costs in the reapportionment matter. There is nobody from whom recovery of the payment of fees and costs can be effected. The county is not responsible for the fees of attorneys of persons who file exceptions to the commissioners' report.
Question No. 3:
"Is it proper for the county attorney, as legal advisor to the fiscal court, to take any active part on behalf of the eight magistrates taking exception to the county judge/executives action in appointing the commissioners and the report that the commissioners file with the county clerk recommending equalizing our justices' districts into four districts?"
Since the county attorney must represent the county, and thus the county work product, i.e., the commissioners' report, he cannot represent the magistrates who individually oppose the report.
Question No. 4:
"Would it be proper for the county attorney to disqualify himself from representing, or permitting his law firm to represent, magistrates who may file exceptions to the commissioners' reapportionment plan?"
It would not only be proper but would be the only legal and ethical course for him to take. The county attorney and his law firm simply cannot at the same time represent the county and someone else who opposes the county. Here in the reapportionment procedure he must represent the county only.