Request By:
Mr. Lambert Hehl
Campbell County Judge/Executive
24 West 4th Street
P.O. Box 340
Newport, Kentucky 41072
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Campbell County has the commissioner type of government. KRS 67.050. It elects seven justices of the peace. Currently three of the districts have no magistrates. Thus the idea of redistricting at this time has surfaced locally.
You ask for our opinion as to how that matter could be pursued.
Under KRS 67.045 the justices' districts of a county may be reapportioned at any time, but not within one hundred and twenty (120) days prior to any primary election for justice of the peace. The procedure is outlined in subsections (3), (4), (5) and (6) of KRS 67.045.
Subsection (1) of KRS 67.045 provides that "In counties where the members of the county fiscal court are elected by districts, the boundaries of those districts shall be drawn so that the population of each district shall be as nearly as equal as in implementation of the one man, one ovte standard laid down in implementation of the one man, one vote standard laid down in 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). However, in view of the fact that Campbell County does not have the magisterial system, and no political or legislative representation is involved, it is our opinion that subsection (1) of KRS 67.045 [requiring equal population in each magisterial district] has no application. To require equal population in such magisterial districts would be a useless thing. As Judge Drury, in Kentucky Title Co. v. Hail, 219 Ky. 256, 292 S.W. 817 (1927) 821, wrote, "The law will not force any one to do a vain and useless thing." [Lex neminem cogit ad vana seu inutilia].
"To initiate a reapportionment proceeding, the county judge/executive shall publish notice of the planned reapportionment in accordance with KRS Chapter 424." See KRS 67.045(3). This language does not prohibit the initiation of a reapportionment proceeding by any citizen of the county, except that, in order to complete the initiation of the proceeding, the county judge/executive must publish notice of the "planned reapportionment" pursuant to KRS Chapter 424. After all, it will finally be up to the district court in a particular case as to whether or not the reapportionment will actually be effected.
Following such notice, the county judge/executive must, within 60 days, in fiscal court, appoint three (3) competent citizens of the county over 21, and residing in different justices' districts, as commissioners to reapportion the county into not less than three nor more than eight justices' districts. See § 142, Kentucky Constitution. It is our view that the county judge/executive can, in his order of appointment, state the precise number of justices' districts to be created in the reapportionment. Otherwise, the determination of the number of districts is left to the commissioners. Wilson v. Dean, 177 Ky. 97, 197 S.W. 547 (1917). The determination of the number of districts automatically determines the number of justices [one per district]. See §§ 99 and 144, Kentucky Constitution.
Since Campbell County does not have the magisterial system, it is our opinion that the county judge/executive may, in his order appointing the commissioners for reapportionment, designate the minimum of three magisterial districts, and an economy can be effected. After all the only purpose presently in having magisterial districts in Campbell County is merely to comply with the constitution in effecting the machinery whereby persons can run for the office of justice of the peace. Justices of the peace, in counties having no magisterial system of government, have been left with little statutory duties or compensation.
In summary, we draw the following conclusions: (1) Generally, the justices districts may be reapportioned at any time, except for the proviso in subsection (2) of KRS 67.045; (2) The provision relating to equal population in such districts is meaningless in those counties having the commissioner type government and may be disregarded; (3) Any citizen of the county may initiate a reapportionment proceeding, except that the county judge/executive must take the affirmative steps provided in KRS 67.045(3); (4) The district court must finally pass on the reapportionment; and (5) The county judge/executive may, in his order of appointing reapportionment commissioners, designate the number of justices' districts of not less than three nor more than eight.