[1993/oagheade.htm]

OAG 93-40

May 6, 1993

Donna B. Perry

Scott County Clerk

County Courthouse

Georgetown, Kentucky 40324

Dear Ms. Perry:

You have asked what procedure should be followed in apportioning justice's districts in counties that have adopted the commissioner form of government. The answer to this question derives from the answer to another question: does adopting the commissioner form of government eliminate the justice of the peace and constable districts that exceed the number of commissioner districts? We conclude that the answer to the second question is yes, and consequently your county contains three justice of the peace/constable districts, the boundaries of which are the same as the three commissioner districts.

Because our response presents a considerable departure from prior opinions, most notably OAG 82-598, we will examine the subject in detail, beginning with the nature of the office in question.

I. The structure of county government

Section 99 of the state constitution says, “There shall be elected in each county a judge of the county court . . . and in each Justice's District one Justice of the Peace and one Constable . . . .” The constitution thus uses the term “Justice's District” to refer to the various portions of the county that are each entitled to elect one justice of the peace and one constable. This terminology is somewhat confusing because in most counties the word “magistrate” is now used to denote the official that the constitution calls “justice of the peace.” Brown v. Read, 311 Ky. 104, 223 S.W.2d 592 (1949).

The duties of constables are simply stated; they are peace officers, according to KRS 446.010, and their function probably has not changed much in the hundred years since our current constitution was adopted, although in many counties the office lies vacant for lack of interest. The duties of justices of the peace are more difficult to describe. The constitution gives two duties to justices of the peace: to act as “conservators of the peace” and to serve on the county fiscal court. Ky. Const. �144. Both aspects of the office require explanation.

The phrase “conservators of the peace” refers to judicial authority, and the term “justice of the peace” as used in each of Kentucky's constitutions designates a court of justice. Hamlet v. Davis, 244 Ky. 727, 51 S.W.2d 963, 964 (1932). The delegates to the constitutional convention contemplated that each justice of the peace would have a “Justice's Court,” the purpose of which was “to afford a convenient and cheap form of justice.” Debates of the Constitutional Convention, p. 3573. With a justice's court in each district of the county, litigants and peace officers did not have to travel all the way to the county seat to obtain judicial relief.

In 1978, Kentucky adopted a comprehensive judicial amendment to the constitution. Commonly called the “1978 judicial article,” the amendment changed several sections of the constitution to provide for a unified and separate Court of Justice. All judicial functions now reside in the district courts, circuit courts, Court of Appeals, and Supreme Court. Obviously, the judicial article eliminated one of the two duties assigned to justices of the peace; they no longer act as “conservators of the peace” in the sense that they have judicial authority.

With their judicial duties gone, the only remaining duty of justices of the peace is their membership on the fiscal court. But that duty, too, is sometimes eliminated. Section 144 of the constitution establishes the county legislative body, known as the fiscal court, which “may consist of the Judge of the County Court and the Justices of the Peace, in which Court the Judge of the County Court shall preside, if present; or a county may have three commissioners, to be elected from the county at large, who, together with the Judge of the County Court, shall constitute the Fiscal Court.” Ky. Const. �144. If a county has adopted the commissioner form of government (which may be accomplished by an election, KRS 67.050), then its justices of the peace have no constitutional duties at all. Their only recognized authority is the ability to perform marriages, but even that requires permission from the county judge/executive or the Governor. KRS 402.050. In counties with commissioners, then, the justice of the peace is an office without a purpose; it is no more than a relic of olden days.

II. Apportioning the county districts.

The U.S. Constitution requires that representatives to legislative bodies be chosen from among approximately equal population groups. Reynolds v. Sims, 377 U.S. 533, 12 L.Ed.2d 506, 84 S.Ct. 1362 (1964). That requirement extends to county government. Avery v. Midland County, 390 U.S. 474, 20 L.Ed.2d 45, 88 S.Ct. 1114 (1968). Thus the state must provide some means of drawing county legislative districts so that each magistrate or commissioner represents approximately the same number of people.

At the county level reapportionment was for some years accomplished under two statutes: KRS 67.045 for reapportionment of justices' districts, and KRS 67.063 for reapportionment of commissioners' districts. In a county with a commission form of government both statutes could be invoked; that is to say, a county with the commissioner form of government could use KRS 67.063 to reapportion its commissioner districts, and use KRS 67.045 to reapportion its justice of the peace/constable districts.

As we have indicated, until 1978 it was constitutionally possible for justices of the peace in counties with the commissioner form of government to have some judicial duties; but after 1978 the office became virtually an empty shell. That situation perhaps explains the legislature's decision in 1982 to repeal KRS 67.063, the commissioner reapportionment statute, and to expand KRS 67.045 to cover both types of district. Subsection 1 of the current statute limits its application to:

(a) Justice's of the peace district[s] in counties having a fiscal court composed of the county judge/executive and the justices of the peace; or

(b) County commissioners' district[s] in counties having a fiscal court composed of the county judge/executive and three (3) county commissioners.

It is obvious that the statutes now provide a means of reapportioning justice of the peace districts in counties that have the magistrate form of government, and a means of reapportioning commissioners' districts in counties with the commissioner form of government; but the statutes provide absolutely no method at all for reapportioning justice of the peace districts in counties with the commissioner form of government. We examined that problem in OAG 82-598 and reached the awkward conclusion that the reapportionment statute “by implication” must be used on justices' districts even though the plain terms of the statute indicate otherwise:

Because of the implications of �99, Kentucky Constitution, the reapportionment procedure of KRS 67.045 would apply, by implication, to the election of justices of the peace in a county having a “commissioner” form of government. Thus you can understand that the reapportionment procedure under KRS 67.045, as relates to justices of the peace in your county, is in no way a duplication of reapportionment. The apportionment of “commissioner” districts relates strictly to commissioners, who will make up the fiscal court, beginning in January, 1986. The “reapportionment of `justice of the peace' districts” will be merely to meet the mandate of �99 of the Kentucky Constitution, although in 1986 their functions are shadowy in nature.

That conclusion was in keeping with OAG 66-105, in which we said,

Though the county has switched to the commissioner form of government, and though the magistrate offices are vacant, it is our opinion that switching to the commissioner form of government does not eliminate the magisterial districts in existence at the time of the change.

That opinion, of course, was rendered ten years before the judicial amendment stripped justices of the peace of their judicial authority, and could be justified on the basis that justices' districts still provided some useful function.

III. Current analysis regarding the number of justice of the peace districts

Since the state constitution requires that county districts be established, and the U.S. Constitution requires that districts be reapportioned, the statutes must perforce be construed to have implemented the legislative authority to set the number and boundaries of such districts in all counties, including counties with commissioners' districts. In OAG 82-598 we said that although such authority cannot be found in the plain language of KRS 67.045, it nevertheless resides there by implication. We now reject that conclusion and find that the legislature has exercised its authority to establish the number and boundaries of justice of the peace districts by making them the same as the commissioners' districts.

Our conclusion derives from this logic:

1. The legislature has the authority to establish the number of justice of the peace districts in each county and to provide the manner in which the district lines are drawn.

2. In KRS 67.045, the legislature has implemented that authority for justice of the peace districts in counties with the magistrate form of government, and for commissioners' districts in counties with the commission form of government.

3. No statute explicitly sets out a procedure for establishing the number of justice of the peace districts or the boundaries of those districts in counties with a commissioner form of government.

4. The legislature has the authority to provide that justice of the peace districts are the same as commissioners' districts. Ky. Const. �142 (“Each county . . . shall be laid off into districts in such manner as the General Assembly shall direct . . . .”).

5. Section 142 of the constitution states only that each county “shall be laid off into districts”; it does not provide or contemplate that counties must have one set of districts for justices of the peace and a different set of districts for commissioners.

6. Since, in counties with the commissioner form of government, justices of the peace have no duties, it is not reasonable to assume that the legislature intended counties with the commissioner form of government to maintain a separate set of district lines for those offices, since that would create needless expense and confusion.

7. The 1982 amendment to KRS 67.045, and the accompanying repeal of KRS 67.063, established the legislature's intent to accord identical treatment to justices' districts and commissioners' districts. By setting out the procedure for establishing commissioners' districts, the legislature stated how such counties “shall be laid off into districts” for the purposes of section 142.

We therefore overrule OAG 66-105 and OAG 82-598 to the extent that they conflict with this opinion.

IV. Conclusion

To summarize our opinion, we find that in counties with the commissioner form of government, the commissioner's districts and the justice of the peace districts are the same; consequently, such counties have three justices of the peace who are elected from the respective commissioner districts. Since constables' districts are the same as the justice of the peace districts (Ky. Const. �99), constables are likewise elected from each commissioner's district. Thus there is no separate apportionment of justice of the peace/constable districts; their districts are the same as the commissioners' districts.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General