Request By:
Mr. William S. O'Daniel
Commissioner
Department for Local Government
909 Leawood Drive
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runvan, Assistant Deputy Attorney General
You request a clarification of OAG 79-552, which deals with the nature and contents of the county judge/executive's notice of a "planned reapportionment" . You say the opinion appears to be based upon the requirement of a petition for reapportionment as set forth in KRS 25.680 - 25.700. KRS 25.680 spoke of an "application for reapportionment. " But you note those statutes were repealed by Acts 1976 (Ex. Sess.), Ch. 14, § 491, effective January 2, 1978.
Although the old statutes were repealed in 1976, the fundamental reapportioning procedure was carefully preserved in the new statute, KRS 67.045. Our opinion, 79-552, represent only an interpretation of KRS 67.045 as relates to what constitutes a valid notice of reapportionment.
It is our belief that a literal interpretation, based upon a mechanistic logic and deduction methodology, will not, in this situation, suffice to penetrate the legislative intent. Take this sentence: "To initiate a reapportionment proceeding, the county judge/executive shall publish notice of the planned reapportionment in accordance with KRS Chapter 424." (Emphasis added). Your counsel, in that regard, has prepared a proposed type of notice. It reads. "In prepared a proposed type of accordance with the provisions of KRS 67.045, notice is given that the judge executive of county plans to reapportion the justice's districts of the county and to appoint three citizens of said county at the fiscal court meeting on the day of . 19 , (not less than 7 nor more than 21 days from the date of publication of this notice) as commissioners to reapportion the county into not less than three (3) nor more than eight (8) justice's districts so that the population of each district shall be as nearly equal as is reasonably possible." You specifically ask whether the notice form is legally adequate under KRS 67.045.
Under the express wording of the statute there is no provision for the "filing of a petition" or an "application for reapportionment. " The actual initiating of the reapportionment procedure must be conducted, if at all, by the county judge/executive. He does that by simply publishing a "notice of the planned reapportionment in accordance with KRS Chapter 424." The critical question here is: What constitutes a valid notice of reapportionment?
It is conceivable that the county judge/executive might not always initiate this procedure when the statute, KRS 67.045(2) [justices' districts must be reapportioned within 6 months following the federal census report to the states], requires, or he might not initiate the procedure when factually it is evident that the districts are substantially unequal. In the latter situation the disparity would be in violation of the one man, one vote principle as enunciated 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, where a county judge/executive fails to carry out his duty under the statute, i.e., fails to initiate a reapportionment proceeding when required, he may be sued in circuit court by way of a mandatory injunction or mandamus action. See
Young v. Jefferson County Election Commission, 04 Ky. 81,200 S.W.2d 111 (1947).
The notice saving that the county judge/executive plans to "reapportion the justice's districts" would be a misnomer. The county judge/executive's executive role is very narrow. He is required to do only four things (1) publish a notice of the planned reapportionment. (2) appoint three (3) commissioners to reapportion the county into justices' districts. (3) swear the commissioners. (4) certify any reapportionment so ordered by the district court to the county clerk. So the reapportionment is actually done by the commissioners, subject to the district court's approval or rejection.
As we said in OAG 79-552, if the one-shot publication of the process is to be an effective notice to the citizens of the county, the mere publication of the fact of the planned reapportionment will not accomplish the purpose of the publication as evidenced by reading the entire statute and considering its practical and educational impact on the people. As we said you cannot expect the masses of the people of the county to adequately understand the legal significance of the reapportionment process if they receize a bare and cryptic notice that the county judge plans to reapportion the county into justices' districts of nearly equal population. Armed with that laconic statement in the press there can be no rush of the masses to procure a copy of KRS 67.045. The average citizen has had no occasion (even in this enlightened age) to know with any precision and certainty about the total terms of KRS 67.045 and its specific application, as relates to the district court, to him as a citizen. Indeed, if the citizens are to be properly forewarned and forearmed as to this important process in the democratic arsenal, they must be made directly and acutely aware of the fact, inter alia, that not later than 20 days after the filing of the commissioners' report any citizen of the county may file exceptions thereto. As we wrote previously, the notice of the major sequential events (the timetable of the whole procedure) within the designated time frame, including the time provisions for filing exceptions, is the crown jewel of the democratic process. The proposed notice, because of its paucity of information in regard to the significant events under the statute, is, we think, inadequate under the terms and purpose of the statute.
Now, since the statute requires the notice to be published "in accordance with KRS Chapter 424", it is necessary to examine first the chronology of events under KRS 67.045 in order to determine whether anything in KRS 424.130 fits. (Emphasis added).
EVENTS UNDER KRS 67.045
1. County judge/executive publishes notice of reapportionment.
2. Within 60 days of notice, county judge/executive appoints 3 commissioners to reapportion.
3. Within 60 davs after their appointment, commissioners must reapportion county and file report with county clerk.
4. Within 20 days after filing report, any citizen of county may file exceptions.
5. District court sets a trial date on exceptions not later than 10 days after deadline for filing exceptions.
The proposed notice provides that the appointment of commissioners will be made not less than 7 nor more than 21 days from the publication of the notice. Undoubtedly your counsel had in mind stressing the event of appointments of commissioners. But that provision is in conflict with KRS 67.045, which provides in part that the county judge/executive may appoint the commissioners within 60 days following the notice.
Considering that KRS 67.045 requires as the first of four major events the publication of the notice of reapportionment, and considering the publication time limitations imposed in KRS 424.130, and considering that the notice will contain five major events, it is apparent that little thought was given to how the procedural events in KRS 67.045 would mesh or be integrated with the events described in KRS 424.130. Viewed in this light an examination of both statutes indicates they are in conflict. They cannot be meshed. However KRS 424.140(4) reads:
* * *
"(4) Where any statute provides that, within a specified period of time after action by any governmental agency, unit or body, members of the public or anyone interested in or affected by such action shall or may act, and it is provided by statute that notice of such governmental action be published, the advertisement shall state the time and place when and where action may be taken."
In order to rationalize the provision of KRS 67.045 requiring publication of the notice, such notice should be published one time at the beginning of the procedure, and it should contain a statement as to the five major events within the described timetable. In describing the event relating to the filing of exceptions to the report of reapportionment, under KRS 424.140(4) the notice should describe that event in terms of the time, place, when and where the people's action may take place.
Our view, we believe, is a practical construction of the statutes designed to effectuate the real purpose of KRS 67.045, while observing the spirit of publication as contained in KRS Chapter 424. "The courts are not under the necessity, in construing a statute, of literalizing it, if to do so would frustrate the object intended to be served by the statute."
Hicks v. Conn, 270 Ky. 344, 109 S.W.2d 811 (1937). The object intended here is to make known to the public the timetable of major reapportionment events in order that they may, if they choose, respond intelligently.
In summary, for the foregoing reasons we are of the opinion that the proposed notice does not meet the requirements of KRS 67.045.
OAG 79-552 is modified accordingly.