Request By:
Mr. Jim 'Pop' Malone
Jefferson County Clerk
Court House
Louisville, Kentucky 40232-3033
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of January 9 in which you refer to the fact that the voters of Jefferson County elected to change from the commission form to the magisterial form of government on November 6, 1984. As a result you raise a number of questions concerning the acceptance of filing papers and the preparation of the ballots for the upcoming primary and general elections. Your first question is as follows:
"1.) Is the title of the office, as it appears on the ballot, to be Magistrate/Representative? K.R.S. 67.042"
Our response to the above question would be in the affirmative. KRS 67.042 provides:
"In counties containing a city of the first class where the fiscal court is composed of justices of the peace and the county judge/executive, the county shall be divided into eight (8) justices' districts and the justice elected from each district shall be entitled a magistrate/representative."
We see no legal objection to the ballot carrying the title "magistrate/representative." It is true that Section 99 of the Constitution refers to the office as that of justice of the peace. However, the terms "justice of the peace" and "magistrate" are synonymous and have been so construed by the courts. Further, it has been a common practice through the years to use this term on the ballot. The use of the word "representative" with the word "magistrate" is certainly not misleading and of course follows the statute. It is used in a similar manner as "county judge/executive" which also has been utilized as the appropriate title for the office on the ballot in spite of the fact that the Constitution has never been amended to change the office of county judge although an amendment to Section 99 was proposed to do so in 1980 but was defeated.
Thus, since the term is authorized by statute and does not mislead the voter insofar as we can determine, we believe the use of the term "magistrate/representative" on the ballot would be perfectly legal.
Your second question reads as follows:
"2.) Are candidates for this Office to run by district in both the Primary and General elections? "
Our response to your second question would also be in the affirmative. The Constitution does not, of course, recognize primary elections which are purely a nominating procedure for the major parties established by the state legislature. Section 99 does require candidates for magistrate to be elected from districts which of course refers to the November election. The only exception with respect to primary elections concerns the nomination of county commissioners in certain counties by countywide vote. See KRS 67.060. However, Jefferson County is excluded from this type of nominating procedure under this statute.
Thus in absence of any attempt on the part of the legislature to provide that magistrates are to be nominated from districts in the primary by countywide vote, we believe they must be nominated by the residents of the districts as has been the case in all past elections for this office throughout the state.
Your third question reads as follows:
"3.) In determining ballot order, is this office heading to appear where 'County Commissioner' is now listed (after jailer and before coroner) or where 'Justice of the Peace' would go (after coroner and before constable) ? K.R.S. 118.215"
Our response to your third question with reference to KRS 118.215 would be that the office of magistrate/representative should be listed as indicated in said statute for justices of the peace following the office of coroner. True, the office of county commissioner is listed following the office of jailer which precedes that of coroner. However, we do not believe under the circumstances that the office in question should be inserted in the place of that of commissioner although frankly it would not appear to make a great deal of difference one way or the other insofar as affecting the legality of the election.
Your fourth question reads:
"4.) Will candidates for this office be subject to the requirements of K.R.S. 121.160? Presently, candidates for Justice of the Peace are exempt from these requirements."
Our response to your fourth question would be in the negative. KRS 121.160 requires candidates to designate at the time of their filing for office a campaign treasurer. This statute, however, and other sections of the reporting requirements of the Corrupt Practice Act with the exception of the identification section, KRS 121.190, which applies to all candidates, is not applicable to those candidates running for magistrate or magistrate/representative as the case may be as stated in KRS 121.100(2) which reads as follows:
"The provisions of subsection (1) of this section shall not apply to those candidates running for federal office, county and local district offices filled by less than a countywide constituency, including conservation district offices, and offices in cities of the third, fourth, fifth and sixth classes." (Emphasis added.)
The above quoted portion of KRS 121.100 excludes from the reporting requirements of the Corrupt Practice Act those candidates running for county and local district offices filled by less than countywide constituency. Since magistrate districts fall in this category, the act would not apply to candidates therefor. However, such candidates must comply with the identification requirements on their political advertisements as provided in KRS 121.190.
Your fifth question reads:
"5.) Voters of Jefferson County have also been electing three Constables - one from each of the present magisterial districts. Will we now elect a Constable from each of the new Magisterial Districts for a total of eight?"
Our response to your fifth question would be in the affirmative. Section 99 of the Constitution requires the election of one constable in each justice district. Therefore where Jefferson County has established eight magisterial districts the Constitution requires that a constable be elected from each district.
Your sixth question reads:
"6.) Once the eight new Magisterial Districts have been set and approved, will the three County Commissioner Districts and the three current Magisterial Districts be eliminated?"
Our response to the above question would be in the affirmative absent any litigation that may affect the change from the commission to the magisterial form of government affirmed at the November 1984 election. KRS 67.050(4) provides that the change in the composition of the fiscal court as a result of the referendum shall become effective upon the assumption of office of the justice of the peace elected at the next regular election for that office which would of course be following the November, 1985 general election when the newly elected magistrates assume office on the first Monday in January, 1986.
There is, however, as you know, possible litigation concerning the continuation of some of the terms of the county commissioners until their staggered terms have expired. This could of course affect how long they continue to serve following the transition date and whether they continue to serve as members of the governing body.