Request By:
Hon. Paul E. Patton
County Judge/Executive
Pike County Courthouse
Main Street
Pikeville, Kentucky 41501
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in answer to your letter of November 17 in which you refer to the death of an elected magistrate in Pike County which will require the vacancy to be filled at the 1983 general election. At the same time, you also refer to the 1982 legislation requiring the reapportionment of magisterial districts that may result in your county in a possible increase from four to eight magisterial districts. For example, you mention that if the court establishes eight districts, the district involving the vacancy could be split into two districts and the question is raised as who decides which district would hold the election. You seek clarification of this situation.
The boundaries of the magisterial districts for the 1983 and subsequent elections will depend upon reapportionment by the fiscal court under the 1982 act pursuant to the "one man, one vote" rule irrespective of precinct boundary lines. However, no magistrate elected to office in 1981 can be legislated out of office during his term. Anggelis v. Land, 371 S.W.2d 857 (1963), OAG 81-424 and 82-55, copies attached.
If the number of districts are not changed but the area merely redistributed placing, for example, several magistrates in the same district, the magistrate elected for the district in which he no longer resides continues to represent the district as held in the Anggelis v. Land, supra, case. However, where the magistrate dies or resigns as is the case to which you refer, the person appointed and elected to fill the vacancy must reside in the vacated district having no representation by virtue of the redistricting procedure irrespective to the fact that due to the boundary he may not possess the one year residential qualification required by Section 100 of the Constitution as long as he has continued to reside in the area and has not changed his residence within the one year period prior to his appointment or election. See KRS 61.015 and McConnell v. Marshall, Ky. 467 S.W.2d 318 (1971) and OAG 67-522.
On the other hand, if additional districts are created then those districts must be filled by appointment subject to being filled by election in November 1983 for the unexpired term in accordance with the requirements of Section 152 of the Constitution. Those magistrates presently serving by virtue of their election in 1982 would continue to represent the number of districts in which they were elected irrespective of the fact that they may reside in one of the newly established and numbered districts which must be filled as we said at the 1983 election.
We hope the above will help clarify the problems that may arise from the Pike County reapportionment.