Request By:
Honorable Benny E. Ham
Commonwealth's Attorney
200 East Mt. Vernon Street
P.O. Box 763
Somerset, Kentucky 42502
Opinion
Opinion By: Chris Gorman, Attorney General; Ian G. Sonego, Assistant Attorney General
We have been asked to address the question whether Senate Bill 172, 1992 Regular Session, which redistricts two judicial circuits, applies to the incumbent Commonwealth's Attorneys during their current term of office or whether its application to the incumbent Commonwealth's Attorneys takes effect only after the next election for Commonwealth's Attorneys. Our answer is that Senate Bill 172 applies to the incumbent Commonwealth's Attorneys during their current term of office. Our explanation for this conclusion follows.
Section 2 of Senate Bill 172 amended KRS 23A.020 and transferred Lincoln County from the Thirteenth Judicial Circuit to the Twenty-Eighth Judicial Circuit. In addition, Section 1 of Senate Bill 172 amended KRS 23A.040 in order to authorize the Twenty-Eighth Judicial Circuit to receive an additional Circuit Judge. Senate Bill 172 became effective on July 14, 1992. Therefore, Senate Bill 172 creates the question whether the Commonwealth's Attorney for the Thirteenth Judicial Circuit is responsible for prosecuting offenses in Lincoln County or whether the Commonwealth's Attorney for the Twenty-eighth Judicial Circuit is responsible for prosecuting offenses in Lincoln County.
KRS 446.080(3) prohibits statutes from having a retroactive effect unless expressly declared. We do not believe that the change effected by Senate Bill 172 is a substantive matter. Rather the change effected is a procedural or administrative matter. Therefore, the application of Senate Bill 172 to the current term of the Commonwealth's Attorney does not violate KRS 446.080(3). See
Commonwealth v. Reneer, Ky., 734 S.W.2d 794 (1987).
The seminal case discussing the General Assembly's authority to redistrict an incumbent
Commonwealth's Attorney is Thompson v. Carr, 76 Ky. (13 Bush) 215 (1877). Although that case was decided under the Kentucky Constitution of 1850, Article VI, Sections 1 and 2, of the Kentucky Constitution of 1850 were incorporated into Section 97 of the present Kentucky Constitution. Those provisions concerned the term and election of Commonwealth's Attorneys. Article IV, Section 27, of the Kentucky Constitution of 1850 was incorporated into the present Kentucky Constitution in Section 134. That section concerns amendments to the boundaries of judicial circuits. However, Section 134 was repealed by the Judicial Amendment, Kentucky Acts 1974, Chapter 84, Section 3, effective January 1, 1976. As a result of that constitutional amendment, the provisions regarding the revision of the boundaries of a judicial circuit are now included in paragraph (2) of Section 112 of the Kentucky Constitution. The wording in Section 112(2) regarding judicial redistricting is somewhat different than the wording contained in the former Section 134. The primary difference is to eliminate the requirement that judicial redistricting only occur as a result of the decennial census enumeration. Hence, except for that restriction on the power of the legislature, we can conclude that the principles set forth in Thompson v. Carr remain valid under the present Kentucky Constitution.
In
Thompson v. Carr, supra, the Court was essentially confronted with a legislative enactment which transferred Taylor County from one Commonwealth Attorney to another but did not transfer Taylor County from one circuit court to another. The Court concluded that the statute was unconstitutional. We will quote from pertinent parts of the opinion (219-220):
We entertain no doubt that the legislature may change the boundary of judicial districts, and that if they had done so they might have deprived the people of Taylor County of the services of the appellant [Commonwealth's Attorney], and him, of the right longer to serve them. The constitution expressly authorizes the boundary of districts to be changed after each enumeration and whenever a new district is created. Whether that could be so done as to transfer a judge or a commonwealth's attorney to a county not included in the district where he was elected we do not intimate an opinion. It is sufficient for this case that there has been no effort to change the boundary of appellee's judicial district. . . . [T]he Constitution requires the district of the commonwealth's attorney to be identical with the district of the circuit judge, no matter what may be the boundary of the district of criminal courts created by the legislature. The office of commonwealth's attorney being created by the constitution and that instrument requiring the office to be filled by a popular election in each judicial, i.e. circuit court district, that officer when elected must perform his duties in the district by which he was elected, and the legislature can neither authorize nor require him to go outside of it, unless they may do so by changing his district at the first session after an enumeration or when a new district is established.
(Emphasis added.)
Kentucky's highest court has had occasion to address similar situations occurring by the amendment of judicial circuit boundaries in subsequent cases under the present Constitution, but prior to the Judicial Amendment. We will proceed to discuss those cases.
In
Watkins v. Snyder, 148 Ky. 733, 147 S.W. 899 (1912), the General Assembly created a new judicial circuit by subtracting one county from each of two other existing judicial circuits. The bill further specified that the incumbent Commonwealth's Attorney in one judicial circuit would become the Commonwealth's Attorney for a newly created judicial circuit. One of the counties from a third judicial circuit had been transferred into the newly created circuit. The Court upheld the constitutionality of this law. The Court stated in part, 147 S.W. at 900-901:
The fact that two of his counties were taken out of the [incumbent Commonwealth's Attorney's] district and the name of his district changed does not affect the result. He had been elected commonwealth's attorney for a term of six years; and in cutting the district in two the Legislature may prescribe in which district he should act for the remainder of his term. . . . The power conferred upon the Legislature to change the districts includes and carries with it the power to work out the details by which change may be carried into effect, without inconvenience or confusion in the public business.
In
McCreary v. Field, 148 Ky. 730, 147 S.W. 901 (1912), decided the same day as Watkins v. Snyder, the Court considered a similar problem, and stated:
. . . There is in the Constitution no limitation upon the power of the Legislature as to the arrangement of the districts, when a new district is created; and from the necessity of the case it must have been contemplated by the makers of the Constitution that the Legislature should regulate such matters.
Therefore, we now come to the current language of the Kentucky Constitution, as amended, contained in paragraph (2) of Section 112. That section states:
The Circuit Court districts existing on the effective date of this amendment of the Constitution shall continue under the name "Judicial Circuits, " the general assembly having power upon certification of the necessity therefor by the Supreme Court to reduce, increase or rearrange the judicial districts. A judicial circuit composed of more than one county shall be as compact in form as possible and of contiguous counties. No county shall be divided in creating a judicial circuit.
Hence, the General Assembly has the authority to revise the boundaries of any Judicial Circuit at any session upon a certification from the Kentucky Supreme Court explaining the need for a change. The Court's opinions in Watkins v.
Snyder and McCreary v. Fields, supra, indicate that the General Assembly has the power to change the district assigned to a Commonwealth's Attorney as a necessary incident to revising the boundaries of a judicial circuit. Section 97 of the present Constitution requires that a Commonwealth's Attorney be elected "in each circuit court district". As has been previously pointed out, the Kentucky Supreme Court has repeatedly stated that the districts for Commonwealth's Attorneys should be identical to the districts for Circuit Judges. Therefore, the provisions of the Judicial Amendment regarding the revision of the boundaries of judicial circuits necessarily and logically apply to the districts established for Commonwealth's Attorneys. The application of Section 112 to a Commonwealth's Attorney does not violate the single subject limitation on constitutional amendments in existence in 1975.
In summary, we conclude that Section 112(2) authorized the General Assembly to revise the boundaries of judicial circuits at any session when it has been requested to do so by the Kentucky Supreme Court through the certification of necessity specified in Section 112. We further conclude that the revised boundaries of a judicial circuit apply to the incumbent Commonwealth's Attorneys and Circuit Judges as of the effective date of the bill, unless the General Assembly has specified otherwise. Therefore, we conclude that the responsibility for prosecuting criminal offenses in Lincoln County is now assigned to the Commonwealth's Attorney for the Twenty-Eighth Judicial Circuit and is no longer the responsibility of the Commonwealth's Attorney for the Thirteenth Judicial Circuit.