Request By:
Mr. R. Scott Madden
Clay County Attorney
P.O. Box 417
Manchester, Kentucky 40962
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In OAG 79-191 we said that magisterial reapportionment may take place any time, 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. 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).
The county judge/executive of your county has appointed commissioners to reapportion the justices' districts, the assumption being that an additional district will be added to the present four (4). Further, it is anticipated that the reapportionment will be completed in advance of the 120 days before the next primary election in May, 1981.
Assuming proper notice, appointment, qualification and timely report of the commissioners and a timely hearing in district court pursuant to law on exceptions, if any, to the commissioners' written report, your question is:
"May candidates for election to the office of magistrate in the newly created district file for and run in the May and November, 1981 elections, the winner to be sworn in and take office on the first Monday in January, 1982?"
The answer to your question is "yes", provided the district court order of apportionment is specifically made effective as of the first Monday in January of 1982. 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) hold that the term or tenure of an incumbent constitutional officer cannot be abridged or altered by any reapportionment. In the circumstances underlying your situation the literal language of KRS 67.045 will be observed and the constitutional principle prohibiting the impairment of a constitutional officer's term will also be observed.