Request By:
Mr. Woodrow Wilson
Metcalfe County Judge/Executive
Courthouse
Edmonton, Kentucky 42129
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your problem concerns initiating a reapportionment proceeding, relating to magisterial districts, pursuant to KRS 67.045.
Subsection (2) of that statute provides that "At minimum, the justices' districts of a county shall be reapporticned within six (6) months following the official report to the states of the data from the latest census of population conducted by the United States government." (Emphasis added).
The Department for Local Government has checked with the Kentucky Department of Commerce and the Urban Studies Center at the University of Louisville about the timetable for the release of the federal census data. The Urban Studies Center anticipates receiving computer tapes with county enumeration district data from the Census Bureau in Washington, D.C. by April 1, 1981. They will then take these computer tapes and publish in printed form a profile for each county by enumeration district. Such final figures will be mailed to the counties by June 1, 1981. Litigation involving the census bureau could delay the release of the final census report. The Urban Studies Center in Louisville has indicated to this office that when the computer tapes are sent down to U.S.C., the final census figures will be distributed to each county as soon as possible.
Under KRS 67.045, to initiate a reapportionment proceeding, the county judge/executive must publish notice of the planned respportionment pursuant to KRS Chapter 424. Within 60 days following the notice, the county judge/executive must, in fiscal court, appoint 3 commissioners to reapportion the county into magisterial districts (3 to 8). Then the commissioners must, within 60 days after appointment, complete their reapportionment.
In view of the fact that the precise time of the availability of the recent federal census county figure is not presently known, you ask whether you can wait until you officialy get the last federal census figure before you actually initiate the reapportionment proceedings under KRS 67.045(3).
Under subsection (2) of the statute the justices' district may be reaspportioned at any time, but not within 120 days prior to any primary election for justice of the peace.
A primary election of justices of the peace for the regular four year term will be held May 26, 1981.
A partial answer to your question is that if you wait until the release of the 1980 federal census to initiate a reapportionment proceeding, the final reapportionment order of the district court would not affect the winners of the four year term in your county, since an effective reapportionment (as relates to the new four year term) must be done before the 1981 primary (and not within 120 days prior to the 1981 primary). It is well established in Kentucky that neither the General Assembly nor other public officials may abolish an office designated eo nominee (by that name) in the Constitution or reduce the term of such an office.
Payne v. Davis, Ky., 254 S.W.2d 710(1953) 712. In other words, the term of an incumbent justice of the peace cannot be terminated or cut short by a reapportionment proceeding. Thus an effective reapportionment must be made timewise such that it accommodates the primary election, that is the filing period and primary election.
Stephens v. Hicks, Ky., 401 S.W.2d 75 (1966) 76.
There is nothing in the one man, one vote cases requiring the ousting of a Kentucky constitutional officer from his office prior to the end of his term [see § 99, Ky. Const.]. See also
Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). The language in Sims clearly suggests that state legislative reapportionment must be synchronized with the state election machinery, such that an apportionment can be made effective only at the next applicable election which would permit, without disruption, the innovation. The one man, one vote principle was applied to county government in
Avery v. Midland County, 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114 (1968).
If you wait to initiate a reapportionment proceeding until you receive the federal census, pursuant to KRS 67. 045(2), the reapportionment would not affect the new four year term and its incumbents.
Suppose that there presently exists a substantial difference in population as to one or more magisterial districts, then under KRS 67.045(2) you may initiate a reapportionment proceeding anytime, provided that it is not within 120 days prior to the 1981 primary for election of justices of the peace. Such a reapportionment, if thus made to accommodate the 1981 primary, would indeed be the basis of an election to the next four year term.