Request By:
Hon. N. Scott Lilly
First Assistant, Jefferson County Attorney
1001 Fiscal Court Building
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Ross T. Carter, Assistant Attorney General
You have asked four questions regarding KRS 67.045, which describes procedures for reapportioning county commissioners districts. Your first question is:
Since KRS 67.045 refers to "regular elections, " does that mean the section is inapplicable to a special election situation as would occur should a vacancy exist?
As you point out, KRS 67.045(3) requires the county fiscal court to initiate reapportionment proceedings in February of the second year following the national census, which of course means that the next mandatory reapportionment will take place in February 1992. The fiscal court may initiate such proceedings at other times if it determines that the current boundaries do not meet the requirements of KRS 67.045(2). However, subsection 5 of the statute provides that the fiscal court may not reapportion districts during the period beginning thirty days before the deadline for filing nomination papers for county office and ending on the day of the regular election.
County officials are elected in odd-numbered years, and the statute obviously is intended to prevent reapportionment at any time during the electoral process. Your question arises because one of the commissioners in Jefferson County is a candidate for state office. If he is successful, then his commissioner office will become vacant and a special election will determine a successor to complete the unexpired term. The special election will occur in 1992, and candidates will file nomination papers in January. Thus there could be an electoral process underway during the time period established for mandatory reapportionment. In such a situation it might appear that subsection 3 requires reapportionment in February 1992 while subsection 5 prohibits it.
This apparent conflict within the statute does not exist because subsection 5 refers to a regular election. The law generally recognizes elections as either "regular" or "special." A regular election is one that occurs at a regular interval and at which voters elect a candidate for a complete term. A special election is held following a triggering event, such as a vacancy in office or the submission of a referendum petition. Lively v. Brown, Ky., 202 S.W.2d 371, 372 (1947). As a general rule, special elections require a proclamation or other notice to the voters to make them aware that the election will occur.
This terminology is confusing because most special elections are held at the same time as a regular election. For instance, 1991 is a regular election year for city commissioners but not for mayors. A vacancy in the office of mayor would result in a November ballot that shows a special election for mayor and a regular election for commissioners.
Since 1992 is not a regular election year for county office, we conclude that apportionment should proceed as scheduled under KRS 67.045(3) regardless of the outcome of the commissioner's race for state office.
Our answer to your first question renders an answer to your second and fourth questions unnecessary. Your third question is:
If KRS 67.045(5) does not apply, what happens if a candidate for commissioner is redistricted out of his district before the primary and how would another candidate be selected after the filing date for the primary has passed?
KRS 67.045(5) insures that reapportionment will not occur during the electoral process. Reapportionment is prohibited from the date thirty days before the filing deadline for the primary and extending all the way through to the regular election. If the statute is obeyed, the situation presented by your question will never arise. A candidate could not have his district reapportioned out from under him because all reapportionment must cease well before the candidate files his nomination papers. Although a special election may be held in the meantime, the special election merely selects an individual to complete the remaining term of the vacant office. We noted in OAG 82-451 that reapportionment does not affect the remaining term of offices that exist at the time of the reapportionment. Thus a candidate to fill a vacancy could not be disqualified because of reapportionment; if he is a resident of the district as it existed at the time the vacancy occurred, he may seek and hold the office.
I hope this response provides sufficient clarification regarding the reapportionment statute.