Request By:
Mr. Floyd R. Frasure
McCreary County Judge Executive
Courthouse
Whitley City, Kentucky 42653
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Pursuant to KRS 67.045, the McCreary County Fiscal Court, consisting of eight magistrates, appointed a reapportionment commission to reapportion McCreary County, Kentucky into eight magisterial districts, consisting of equal populations. According to the statutes this plan is to be adopted by November 15, 1982, in order to be in compliance with the state law.
On September 1, 1982 a petition was filed requesting that the question "Are you for or against a commission form of government consisting of a county judge executive, and three commissioners", be placed upon the ballot November 2, 1982. As a result of this election, the voters of McCreary County, Kentucky, chose to adopt a commission form of government for McCreary County, as established in KRS 67.050 and 67.070. In lieu of this event, candidates for county commissioners will run for office in the August 1985 primary, and the November 1985 general elections in McCreary County, Kentucky.
Your first question reads:
"I would like to know if the reapportionment commission is still under a fiscal court directive to reapportion McCreary County into eight magisterial districts, or if they are under a mandamus of the electorate of McCreary County as a result of the November 2 election, to reapportion the county into three districts of equal population."
The fiscal court, of course, was acting under the authority of KRS 67.045(4) in appointing the reapportionment commissioners to reapportion the county into eight justices', or magisterial districts. The county is presently operating under the justices' or magisterial form of government.
The purpose of the reapportionment statute is to provide a reapportionment of the county, regardless of whether the county is using the "magisterial" form or the "commissioner" form of government, in order to meet the requirement of equal population under the one man, one vote cases of the Supreme Court of the United States. See KRS 67.045(4);
Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964); and
Avery v. Midland County, 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114 (1968).
Assuming the petition to have the question of commissioner form of government on the ballot was signed by at least one hundred (100) legal voters of the county, pursuant to KRS 67.050, and assuming any other requirements of the statute were properly complied with, the voters chose to adopt the "commissoner" form of government, and their choice must be properly installed.
There is nothing in the one man, one vote cases and nothing in the Kentucky law requiring the ousting of a Kentucky constitutional officer from his office prior to the end of his term. See § 99, Kentucky Constitution; and
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 clection 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).
The next regular election for fiscal court members will be held in 1985, to take office on the first Monday in January, 1986. Under KRS 67.060(1), the county judge executive is required, before the next regular election in 1985 for county officers, to divide the county into three (3) districts as nearly equal in population as practicable, and shall establish the boundary lines of each of the three (3) commissioner districts so that each district is an unbroken area and not split or divided by another commissioner district. At the next regular election for county officers, i.e., 1985, and every four (4) years thereafter, there shall be elected by the voters of the entire county (elected from the county at large) three (3) commissioners, (1) from each district who, with the county judge executive, shall constitute the fiscal court.
Our answer to your first question is that the reapportionment of magisterial districts under KRS 67.045 must be completed as directed. However, the present magistrates' terms will continue to run their course through the year 1985. In the year of 1985 justices of the peace will be elected for another four year term, but as elected justices of the peace, they will not be on the new fiscal court. Section 99 of the Constitution requires the continual election of justices of the peace from magisterial districts.
We have already answered your question as to the apportioning of the county into three commissioner districts by you prior to the next regular election of 1985.
You must understand that KRS 67.060 has to do will "apportionment" of the county into three commissioner districts when the voters of the county, by majority vote, decide to install the "commissioner" form of government. In such case, the county judge executive has the responsibility of the apportionment of the county. Where a "reapportionment" of the county is involved in order to resolve a disparity in population in the districts, regardless of whether the "commissioner" or "justice of the peace" type of government is involved, that procedure is now governed by KRS 67.045, under which the fiscal court is responsible for appointing commissioners to reapportion the county into "justice of the peace" districts or into "commissioner" districts, depending upon the form of county government. Cf. KRS 67.063, relating to the fiscal court's appointing commissioners to "reapportion" county into commissioners' districts. That section was repealed by Acts 1982, Ch. 29, § 2, effective July 15, 1982. The "reapportionment" procedure is now found in KRS 67.045, which covers the "commissioner" or "justice of the peace" form of government, as the case may be.
Because of the implications of § 99, Kentucky Constitution, the reapportionment procedure of KRS 67.045 would apply, by implication, to the election of justices of the peace in a county having a "commissioner" form of government. Thus you can understand that the "reapportionment" procedure under KRS 67.045, as relates to justices of the peace in your county, is in no way a duplication of reapportionment. The apportionment of "commissioner" districts relates strictly to commissioners, who will make up the fiscal court, beginning in January, 1986. The "reapportionment of 'justice of the peace' districts" will be merely to meet the mandate of § 99 of the Kentucky Constitution, although in 1986 their functions are shadowy in nature.