Request By:
Mr. John P. Blevins
Metcalfe County Attorney
Box 187
Edmonton, Kentucky 42129
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Metcalfe Fiscal Court has appointed commissioners to reapportion the magisterial districts in order to comply with KRS 67.045.
The reapportionment commissioners requested that you seek our opinion on the following questions:
1. When will the new plan of reapportioned districts become effective?
2. Must the new plan of reapportionment include the place of residence of the existing magistrates who will serve until the next county election?
3. May the commissioners redraw the boundary lines of a precinct or must the procedure the taken by the Board of Elections as set forth in KRS 117.055?
KRS 67.045, as amended in the 1982 session (Ch. 29, § 1), provides for reapportionment of magisterial districts.
Subsection (7) of KRS 67.045 reads.
"(7) Within twenty (20) days of the establishment of the districts by the fiscal court, any registered voter of the county may bring an action in the circuit court to enforce the provisions of this section. The circuit court shall hear the action and, on a finding that the fiscal court has violated the provisions of this section, remand the matter to the fiscal court. The circuit court, in its discretion, may allow the prevailing party, other than the fiscal court, a reasonable attorney's fee, to be paid from the county treasury, as part of the costs."
Concerning question no. 1, and assuming that the fiscal court has properly established the districts under the statute and no timely court action has been filed concerning the establishment, the establishment is considered effective, except as otherwise indicated hereafter, when the order of fiscal court in the matter takes the form of an ordinance and becomes effective as an ordinance pursuant to KRS 67.075 through 67.077. Under subsection (7) of the statute, and within 20 days of the establishment of the districts, any registered voter may sue in circuit court to enforce the provisions of the statete. Thus such suit could delay the effective date.
In addition, since a justice of the peace serving on fiscal court is a constitutional officer (see §§ 99, 142 and 144, Kentucky Constitution), the presently elected magistrates (justices of the peace) on the fiscal court are entitled to serve out the remainder of their terms, which will end on January 1, 1986.
Payne v. Davis, Ky., 254 S.W.2d 710 (1953). There the court wrote that "Neither the General Assembly nor any city legislative body may abolish an office designated eo nominee in the consitution or reduce the term of such an office." (Emphasis added).
We have already answered question no. 2.
As relates to question no. 3, under KRS 67.045(5), the reapportionment commissioners must, within 60 days after their appointment, lay off the boundary lines of the districts. Thus they must reapportion the county into not less than three (3) nor more than eight (8) justices' districts in counties having a fiscal court composed of justices of the peace and the county judge executive. The boundaries of those districts under KRS 67.045(2) shall be drawn so that the districts are compact, contiguous and the population of each district shall be as nearly equal as is reasonably possible.
Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964);
Avery v. Midland County, 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114 (1968). The reapportionment commissioners shall file in the county clerk's office and with each member of fiscal court a written report, shwint the boundary of each district and the estimated populaion in each.
In other words, the reapportionment commissioners are required to lay off the boundary lines of the districts under the express guidelines of KRS 67.045. After they file their report, and within 60 days of the receipt of the report, the fiscal court shall consider the report of the commissioners and, in accordance with KRS 67.075 to 67.077, adopt or amend the report in establishing the districts. Thus the fiscal court finally establishes by ordinance the districts. KRS 67.045(6) provides that election precinct lines shall be redrawn when necessary in accordance with KRS 117.055. No election precinct shall be in more than one (1) magisterial district. KRS 117.055(3), as amended in 1982 (Ch. 394, § 8) provides that the County Board of Elections shall coordinate all precinct boundary changes with the affected school board, magisterial and municipal boundaries. However, the establishment of magisterial districts is done by the work of the commissioners of reapportionment as finally treated by fiscal court ordinance. The coordination of precinct boundaries with magisterial districts is the separate burden of the County Board of Elections under KRS 117.055.