Request By:
Honorable Benjamin J. Lookofsky
Graves County Attorney
Graves County Court House
Mayfield, Kentucky 42066
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
In response to your letter of February 26 we refer you to OAG 80-132 concerning the wording of the ballot question relating to changing the form of county government from commission back to magisterial, which is hereby modified.
You further relate that the county had eight (8) magistrates serving as the fiscal court when it changed to the commission form of government, and you raise the question as to how many magistrates will be required if the county decides to return to the magisterial form of government.
The answer is eight (8), the present number of elected justices of the peace. Even though the county changes to the commission form of government, § 99 of the Constitution requires the continual election of justices of peace [magistrates] from districts. These justices of peace compose the fiscal court pursuant to § 144 of the Constitution if the county is operating under the magisterial form of government. If it switches to the commission form, then three (3) commissioners must be elected. However, the justices of peace are required to continually be elected pursuant to § 99. This being the case and if the county reverts back to the magisteral form of government, the fiscal court would automatically be represented by eight (8) justices of the peace. See
Hollenback v. Carter, Ky., 516 S.W.2d 336 (1974).
Of course, the division of magisterial districts is based on population and it may now be necessary to reapportion these districts pursuant to KRS 67.045 [enacted in 1978] following the repeal of KRS 25.680 at the 1976 Extraordinary Session. However, unless and until justices districts are reapportioned to reduce the number of districts, a vote in favor of the return to the fiscal court form of government would automatically establish such government as comprising eight (8) magistrates.
In view of the fact that there were and presumably still is [if the number has not been reduced by reapportionment] eight (8) justices of the peace elected in the county, the ballot question should reflect this by asking the question: "Are you for or against having a fiscal court composed of eight (8) justices of the peace and the county judge/executive?" The suggested ballot question referred to in OAG 80-132 is modified accordingly.
As we mentioned above the magisterial districts should reflect as near equal population as possible to compy with the "one man, one vote" principle initially enunciated in the case of