Request By:
Hon. Willie Hendrickson
Bell County Judge/Executive
Courthouse
P.O. Box 366
Pineville, Kentucky 40977
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Asst. Deputy Attorney General
In 1980 you appointed three commissioners, pursuant to KRS 67.045, to reapportion the magisterial districts of Bell County. The commissioners reapportioned the county into four magisterial districts. There were originally eight districts. The commissioners' reports were filed with the county clerk after you certified them to the county clerk, as required by KRS 67.045(6). No exceptions were ever filed to those reports; and thus the reports remain on file in the county clerk's office. The District Court was not involved in the reapportionment in any way, since no exceptions to the reports were filed.
Your question is whether or not the 1980 reapportionment was valid under the recent decision of the Supreme Court of Kentucky. The answer is "yes."
You refer to the case of Fawbush v. Bond (81-SC-119-TG), in which the Supreme Court of Kentucky rendered a decision on March 13, 1981. The opinion is not yet in the advance sheets.
In Fawbush v. Bond, above, the Supreme Court of Kentucky specifically held that KRS 67.045 is invalid and that no redistricting can be effected according to its provisions.
The Court struck down the statute on the ground that it vests in the District Court a legislative function in providing that the District Court, upon exceptions being filed, "establish the boundaries of the districts" by order. The Court said in effect that §§ 27 and 28 of the Kentucky Constitution prohibit one branch of government from performing functions belonging to another, citing American Beauty Homes Corp. v. Louisville, etc., Ky., 379 S.W.2d 450, 453 (1964). The Court wrote in Fawbush that "We can think of no act of government that is more legislative in character than the fixing of boundaries for electoral purposes."
The Court in Fawbush wrote this concerning its practical effect on reapportionment:
"This opinion shall have prospective effect only, and shall not affect any redistricting that may have been completed heretofore in other counties pursuant to KRS 67.045 and which were not in litigation on February 17, 1981, the date on which appeal was taken in this proceeding."
Since under the terms of the Fawbush opinion the Bell County reapportionment of magisterial districts was completed heretofore, and since the matter was not under litigation as of February 17, 1981, it is our opinion that the 1980 magisterial reapportionment in your county is valid and controls in connection with the filing for office of magistrate in the new four magisterial districts.
The reapportionment principle of one man, one vote was established by the Supreme Court of the United States in Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). That principle was later applied to county government in Avery v. Midland County, 390 U.S. 474, 20 L.Ed 2d 45, 88 S. Ct. 1114 (1968). As the Court said in Reynolds, concerning political districting, "Whatever the means of accomplishment, the overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the state" (12 L. Ed. 2d 537). As the Court wrote in Connor v. Finch, 431 U.S. 407, 52 L. Ed. 2d 465, 97 S. Ct. 1828 (1977), "The equal protection clause requires that legislative districts be of nearly equal population, so that each person's vote may be given equal weight in the election of representatives. It was recognition of that fundamental tenet that motivated judicial involvement in the first place in what had been called the 'political thicket' of legislative apportionment."
The Supreme Court of Kentucky, in recognizing the great importance of preserving the one man, one vote principle, while the legislature is considering a new piece of legislation relating to magisterial reapportionment, wrote this:
"We recognize, though it is not a matter of record here, that the existing boundaries of the magisterial districts in Shelby County may be such that unconstitutional inequities exist. If so, a Court of general jurisdiction has the power to do what is necessary in an appropriate proceeding," citing Reynolds and Connor, above.
Conclusion
Based upon the foregoing holding in Fawbush, above, it is our opinion that the Bell County magisterial districts reapportionment of 1980 into four districts is valid and constitutional. Candidates for those offices should file on that basis.