Request By:
Ms. Rosemary F. Center
Wolfe County Attorney
Courthouse
Campton, Kentucky 41301
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter requests an opinion of this office regarding magisterial districts under KRS 67.045.
Question No. 1:
What are the possible consequences for failure to reapportion as directed by KRS 67.045?
KRS 67.045(2) requires that the boundaries of magisterial districts be drawn so that the districts are compact, contiguous and the population of each district shall be as nearly equal as is reasonably possible. Such equal population is necessary under the one man, one vote principle of the Supreme Court of the United States. Avery v. Midland County, 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114 (1968).
KRS 67.045(3) requires a reapportionment initiated by the fiscal court in February of the second year after the decennial census of the United States. The statute sets forth deadlines concerning the filing of the report of the reapportionment commissioners and the final action of fiscal court in ordering a reapportionment by ordinance. Subsection (8) of the statute provides that the fiscal court of any county which has not reapportioned its districts since the 1980 decennial census of the United States shall initiate reapportionment proceedings within sixty (60) days of July 15, 1982.
Where the fiscal court fails to initiate reapportionment by giving notice and appointing commissioners, the fiscal court could be subject to a taxpayer's class action suit in mandamus in the local circuit court. See Young v. Jefferson County Election Commission, 304 Ky. 81, 200 S.W.2d 111 (1947), holding that either mandamus or mandatory injunction will lie to compel public officers to perform a duty imposed upon them by law.
The cases of Adams v. Roberts, 119 Ky. 364, 83 S.W. 1035 (1904) and Angellis v. Land, Ky., 371 S.W.2d 857 (1963) hold that the term or tenure of ar incumbent constitutional officer cannot be abridged or altered by any reapportionment of their districts.
Question No. 2:
If the reapportionment procedure was not initiated within sixty days of July 15, 1982, is it still possible to reapportion insofar as it does not take place one hundred twenty (120) days prior to a primary election?
Subsection (5) of KRS 67.045 provides in part that "In no event shall districts be reapportioned during the period from thirty (30) days prior to the last date for filing for candidacy for county office as provided in KRS 118.165 and the regular election for candidates for county office.
There is no present problem with reapportioning, since the next primary for election of county officers comes off in 1985. KRS 118.165 refers to filing of nomination papers not less than fifty-five (55) days before the primary election day.