Request By:
Mr. James M. Groves
Chairman
Todd County Democratic
Executive Committee
P.O. Box 587
Elkton, Kentucky 42220
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
This is in response to your question concerning the reapportionment of magisterial districts. The incumbent county judge appointed three commissioners earlier this year pursuant to KRS 25.680, 25.690 and 25.700. The commissioners have refused to perform their statutory duties, thus far. Justices of the peace continue to serve on fiscal courts in counties having the magisterial system, although justices' judicial functions will cases as of January 2, 1978.
You ask: If the commissioners have not reapportioned the magisterial districts by January 1, 1978, does the new county judge/executive have the power to appoint three new commissioners?
In connection with KRS 25.680, 25.690 and 25.700, which detail the procedure for reapportioning magisterial districts, Senate Bill 15 (Ch. 14, Ex. Sess., 1976), §§ 491 and 492, repealed those statutory sections as of January 2, 1978, but enacted no legislation to replace it.
As of January 2, 1978, there will be no statutory law dealing with magisterial district reapportionment. Cf. KRS 67.063, enacted in 1972, and amended in 1974 and in 1976 of the Extraordinary Session, relating to reapportionment of commissioners' districts, to be conducted by fiscal courts. Section 142 of the Kentucky Constitution provides in part that each county "shall be laid off into districts in such manner as the General Assembly may direct; . . ." (Emphasis added). It is obvious that § 142 is not self-executing and requires implementing legislative action by the General Assembly.
It is our opinion that the blanket repeal of KRS 25.680, 25.690, and 25.700, as of January 2, 1978, will leave Kentucky in an incredible vacuum as concerns magisterial district reapportionment. It is obviously compelling that the General Assembly either reenact virtually the same legislation or enact similar legislation as soon as possible in the 1978 regular session. This is expecially urgent since the Federal Supreme Court one man, one vote principle, i.e., the principle of population equality in the political district, must be adhered to by the states and county governments.
Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). The principle was made applicable to county government by
Avery v. Midland County, 390 U.S. 474, 20 L.Ed2d 45, 88 S. Ct. 1114 (1968).
While KRS 25.680, 25.690, and 25.700, as relate to the county court, purport to involve a judicial function, it is possible that the General Assembly in addressing this subject in the 1978 session might insert the "county judge/executive" in lieu of "county court" and "county judge" in the new statutes, and treat it as an administrative function, providing for hearings instead of trials. If so, the newly elected county judge/executive [or fiscal court if that body is given the administrative role in reapportioning] could reappoint the same commissioners [assuming the reapportionment by the commissioners is not completed in 1977] or three other persons to serve in that capacity if the original three will not serve.
Under the present statutes, KRS 25.680, 25.690 and 25.700, where commissioners are appointed they normally would remain appointed until they finish the work for which they were appointed. See 63 Am.Jur.2d, Public Officers and Employees, § 109. However, in this situation, as of January 2, 1978, the statutes stand repealed and the commissioners' appointments fall with the dead statutes. Therefore, upon new legislation being enacted after January 2, 1978, new commissioners must be appointed by whomever is designated in the new legislation as the appointing authority.