Request By:
Mr. Lambert Hehl
Campbell County Judge/Executive
24 W. 4th Street
Newport, Kentucky 41072
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise a question concerning a reapportioning of the magisterial districts in Campbell County. You have the commissioner type government.
KRS 67.045(2) provides that "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." (Emphasis added).
As a matter of fact, there will be a primary election to fill a magisterial position vacancy. The primary election will be held May 29, 1979. KRS 118.025(3).
Your question: "Specifically under the terms of KRS 67.045, can magisterial reapportionment take place at any time prior to a regular election? "
The court, in interpreting the old statute, KRS 25.680, which prohibited reapportionment conducted within 60 days "previous to an election" , held that the orderly selection of public officers logically demands that any reapportionment must be done before a "primary" election. In that case the order of reapportionment was entered in August, 1965, the year of the election of justices of the peace to 4 year terms. The court held that such an order could not be entered within 60 days of the primary election in the year of the election of justices of the peace to four year terms.
Thus the reapportionment of justices' districts cannot affect the term of incumbent justices, and such reapportionment can be made effective only in connection with the next election of justices of the peace for the constitutional four year term. See 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) holding that the term or tenure of an incumbent constitutional officer cannot be abridged or altered by any redistricting.
There is nothing in the one man, one vote cases requiring the ousting of a Kentucky constitutional officer from his office prior to the end of his term [see § 99, Ky. Const.]. See also
Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). The language in Sims clearly suggests that state legislative reapportionment must be synchronized with the state election machinery, such that an apportionment can be made effective only at the next applicable election which would permit, without disruption, the innovation. The one man, one vote principle was applied to county government in
Avery v. Midland County, 390 U.S. 474, 20 1.Ed.2d 45, 88 S. Ct. 1114 (1968).
It is our opinion, based upon the above analysis and authorities, that magisterial reapportionment may take place any time, 1 provided that any final order of reapportionment of the district court cannot take effect prior to the first Monday in January, 1982, when the new term of justices begins. Under this view the constitutional principle and the implementing statute, KRS 67.045, are preserved and remain inviolate.
Should there be another reapportionment [in addition to the one now proposed] prior to the first Monday in January, 1982, in connection with necessity to equalize the population in the districts, the later reapportionment would govern, even though both orders would operate in futuro. For that reason it might be wise to postpone a reapportionment until the time approaching the first Monday in January, 1982.
Any order of the district court ordering a reapportionment prior to the first Monday in January, 1982, should contain the point that the operative effect of the order is delayed until the first Monday in January, 1982, because of the Kentucky law, as declared by the appellate courts, relating to the constitutional guarantee against impairment of the term of an incumbent constitutional officer. See 46 Am.Jur.2d, Judgments, § 236, p. 467.
Footnotes
Footnotes
1 Under the literal wording of KRS 67.045 the order cannot be entered if it is within the 120 day period prior to the primary of 1982.