Request By:
Senator Pat McCuiston
Representative Mark O'Brien
Cochairmen
Interim Joint Committee on State Government
Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of December 10, in which you raise a number of questions based on the assumption that redistricting legislation will be enacted during the 1982 regular session.
Your first question is as follows:
"For what elections would the House and Senate plans first become effective? "
Of course, any redistricting legislation enacted at the 1982 regular session will become effective as provided therein or at the time ordinary legislation becomes effective. However, in response to your question and based upon the legislation time table detailed in Chapter 440 of the 1978 Acts, the 1983 regular election for members of the Senate elected from odd-numbered districts for five-year terms, and the regular election in 1984 for members of the House for three-year terms, will be the first regular elections affected by any redistricting legislation enacted at the 1982 session.
Your second question is as follows:
"For what elections would the Congressional plans become effective? "
Any congressional redistricting legislation enacted at the 1982 session would initially become effective for the 1982 regular election for members of the U.S. House of Representatives, assuming an emergency is declared to make it effective before the primary, as occurred in 1966.
Your third question is as follows:
"Would the nineteen Senators elected in 1983 be elected from the new, odd-numbered Senate districts?"
Our response to the above would be in the affirmative, as mentioned in the response to your first question.
Your fourth question is as follows:
"We conclude from Angellis v. Land that a Senator who was elected in 1981 from a current, even-numbered district will continue to serve until 1986 even if he does not reside in the new district that bears the number of the district from which he was elected. Are we correct?"
The holding in the case of
Angellis v. Land, Ky., 371 S.W.2d 857 (1963), which involved a change in the geographical boundaries of the Twelfth senatorial district, clearly established the fact that an elected official cannot be legislated out of office, even though by virtue of the change in the congressional district line he no longer resides in the district. The Court pointed out that "The Act does not abolish the office, nor shorten the term of the Senator presently representing the Twelfth District and it is doubtful whether the Legislature could validly have done so.
Payne v. Davis, Ky., 254 S.W.2d 710."
Based on this decision, a senator elected in 1981 from a current, even-numbered district will continue to serve throughout the remainder of his term ending January 1, 1987, even though he no longer resides in the new district as the result of the change in the boundary line of said district.
Your fifth question which has several parts, is as follows:
"If a Senator who was elected in 1981 resigns or otherwise vacates his office before 1986, from what district would the vacancy be filled: (a) the district for which he was elected in 1981, or (b) the new district bearing that number? In enacting a redistricting plan, could the General Assembly constitutionally specify in which of the two districts any such special election would be held?"
A duly elected member of the General Assembly cannot be legislated out of office, as pointed out in the Angellis case. However, if he resigns or vacates the office before the end of his regular term, we believe that the vacancy must be filled in accordance with the 1982 redistricting act, which means it must be filled from the new district bearing the same number rather than from the district from which he was elected in 1981. We base this assumption on the principle expressed in the Angellis case, to the effect that the officeholder's right to continue in office from the old district is based solely upon the fact that he was elected prior to the effective date of the legislative change and, therefore, cannot be legislated out of office. However, when he vacates the office after the legislative change, his successor would not be entitled to continue his right of office for the unexpired term in violation of the residential requirements under Section 32 of the Constitution. Likewise, we do not believe that the General Assembly could constitutionally specify that the special election to fill the unexpired term must be held in the old district since this would be contrary to the terms of Section 32 of the Constitution relating to residential qualifications. Here we would like to point out, however, that the fact the change in the district line might not allow certain candidates living in the area affected by the change, sufficient residential time to qualify for the office, is of no significance in view of the provisions of KRS 61.015, which reads as follows:
"No person shall be disqualified from election or appointment to any public office or position of employment, for which the law requires a term of prior residence in a district or city, solely because of alternations in city or district boundaries; and he shall be deemed to meet such residence requirements if he has resided during the period required by law in the geographic area encompassed by the boundaries of the city or district from which he is elected or appointed." (Emphasis added.)
See also
McConnell v. Marshall, Ky., 467 S.W.2d 318 (1971).
Your sixth question is as follows:
"Assuming that as a result of redistricting a Senator who was elected from an even-numbered district in 1981 resides in the same (odd-numbered) district as a Senator whose term ends in 1983, can the Senator who was elected in 1981 run in the primary and general elections for the new odd-numbered district seat without first resigning his Senate seat? "
Our response to the above question would be in the affirmative since there is no restriction placed by either the Constitution or statutes pertaining to incompatible offices [with certain exceptions not applicable here], that would prevent a person holding a senatorial office from continuing to hold the office while at the same time becoming a candidate for another senatorial office. The question of incompatibility does not arise until the person assumes the second office that is incompatible with the one he presently holds. See KRS 61.090. Of course, if elected in November, he must either resign his present office before assuming the office for which he was elected or refuse to accept the office on the first day of January.