Request By:
Mr. Carl Brown
Jefferson County Commissioner
Jefferson County Courthouse
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Asst. Deputy Attorney General
Your problem concerning, reapportionment of commissioners' districts was stated as follows:
"In the recent case of Fawbush v. Bond the Kentucky Supreme Court held that the magisterial redistricting statute (KRS 67.045) was void because it gave the power to grant the redistricting to District Court. The redistricting statute for County Commissioners (KRS 67.063) is similar, but not identical. It refers to "court" but not "district court." It is possible that the legislature was referring to Fiscal Court in this instance."
Your question is this: What is the constitutional status of KPS 67.063, relating to reapportionment of commissioners' districts?
In Fawbush v. Bond [not yet in advance sheets], March 13, 1981, the Supreme Court ruled that KRS 67.045, relating to reapportionment of magisterial districts, was unconstitutional, since it vested the District Court with an essentially legislative function. Concretely, that statute provides that where exceptions are filed to the commissioners' report of reapportionment, the District Court must enter an order "establishing the boundaries of the districts." The Court said that the fixing of boundaries or new lines for electoral purposes was legislative in character, and thus the statute violates §§ 27 and 28 of the Kentucky Constitution. See American Beauty Homes Corp. v. Louisville, Ky., 379 S.W.2d 450, 453 (1964), cited by the Supreme Court of Kentucky in Fawbush, above.
The Court, in Fawbush, wrote that it did not question the authority of the legislature to invest in the District Court the jurisdiction to review a reapportionment proposal for compliance with statutory guidelines. The Court said that KRS 67.045, however, provides no criteria whatever for such a review.
Keeping in mind the Court's analysis of KRS 67.045, as just stated, let us turn to KRS 67.063, which is used in Jefferson County in electing commissioners for the Jefferson County Fiscal Court.
Under the latter statute, the fiscal court appoints three commissioners as reapportionment commissioners to reapportion the county into three (3) county commissioner districts, as nearly equal in population as possible. The reapportionment commissioners must within twenty (20) days after they are sworn in lay off boundary lines of the district and shall establish the district boundary lines so that each district is an unbroken area and not split or divided by another county commissioner district. No boundary line of a commissioner's district shall cross the boundary line of an election precinct. See KRS 117.055. The reapportionment commissioners must file in the county clerk's office a written report, showing the boundary of each district and the estimated population in each. Not later than thirty (30) days after the filing of the report, any citizen of the county may file exceptions, and the fiscal court shall fix a day not later than ten (10) days after the filing of exceptions for a hearing thereon.
Under KRS 67.063(2), "at the hearing the Court shall dispose of the exceptions and, by order entered of record, establish the reapportioned boundaries of the districts." (Emphasis added.) In reading all of subsection (2) of KRS 67.063, it is our opinion that the word "court" refers to fiscal court. In the previous sentence the fiscal court fixes the hearing date. It would not make sense for the fiscal court to set a hearing date for a judicial court. Legislative intent to do an impractical thing or a foolish thing will not be imputed to the legislature. Martin v. Louisville Motors, 276 Ky. 696, 125 S.W.2d 241 (1939) 246. Moreover, in KRS 67.063 the only "court" mentioned is "fiscal court." No judicial court is referred to. Clearly the contextual and syntactical arrangement of the language in KRS 67.063 suggests that it is the "fiscal court" which holds the hearing. See Sutherland, Statutory Construction, Vol 2A, § 46.05 on "whole statute" interpretation.
Under the assumption that the courts would probably interpret the statute (KRS 67.063) to provide that the fiscal court would hold the hearing on exceptions to the reapportionment report, it is our opinion that KRS 67.063 would be held constitutional, since the legislative function of reapportionment and establishing of boundaries of commissioners' districts is left to the determination of the fiscal court, itself a body with legislative functions.
While KRS 67.063 mentions no appeal to the court system, it is our opinion that any citizen aggrieved by the order of reapportionment of the fiscal court could seek a review of the order in Circuit Court on the question as to whether or not the reapportionment was constitutionally effected. That would be permissible under the Court's interpretation of § 2 of the Kentucky Constitution proscribing arbitrary action. In Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1964) 258, the Court wrote that § 2 of the Constitution is a "concept broad enough to embrace both due process and equal protection of the laws, both fundamental fairness and impartiality."
While the Court in Fawbush observed that KRS 67.045 contains no statutory guidelines for review by District Court, it is our view that under the philosophy expressed in Pritchett v. Marshall, above, the Circuit Court could review the reapportionment work in terms of making a categorical finding that the reapportionment was or was not constitutionally effected, in terms of the one man, one vote principle. The reference in KRS 67.063 to districts "as nearly equal in population as possible" is a concrete expression of the General Assembly to implement the holding of the Supreme Court of the United States as to the one man, one vote principle. There is no demographic or political mystery about that principle. See Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964), in which the Court wrote (12 L. Ed. 2d 529) that "Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature. Modern and viable state government needs and the constitution demands, no less."
The Supreme Court of the United States in applying the one man, one vote principle to county government, in Avery v. Midland County, 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114 (1968), held that a resident of a Texas county has a right to a vote for the commissioners' court, a generally governing body of the county, of substantially equal weight to the vote of every other resident. The Texas Supreme Court had taken the view that commissioners' precincts must have substantially equal populations, stating that such factors as the number of qualified voters, land areas, geography, miles of county roads and taxable values could be considered. See Tex., 406 S.W.2d 422 (1966) at 428. The Court held that the Equal Protection Clause of the Fourteenth Amendment of the Federal Constitution forbids the election of local government officials from districts of disparate population. The Court pointed out that under its holding in Reynolds v. Sims bases other than population were not acceptable grounds for distinguishing among citizens when determining the size of districts used to elect members of state legislatures. The Court reiterated that position, stressing that the Constitution imposes one ground rule for local governments, i.e., the one man, one vote principle.