dissenting.
Respectfully, I dissent. With due regard for the effort made in the Majority Opinion to analyze and explain KRS 452.405(2), as a basis for affirming venue in this action, I must respectfully suggest that the approach is shortsighted, and that the Majority has failed to see the forest for the trees.
The Majority has analyzed venue as lying where the allegedly offending statute impacts the plaintiff, and concludes that this occurred in Campbell County because “the effect of the redistricting lines was felt in Campbell County, where Fischer is a resident and taxpayer.”
But the primary or fundamental issue in this case, the gravamen of this action, is not the impact of the 1991 Reapportionment Act on this plaintiff, nor are the state officials named as defendants, the State Board of Elections and Secretary of State Bob Babbage, any more than nominal parties. The essence of this case is declarative relief, declaring the state statute unconstitutional and therefore, incidentally, unenforceable by the ministerial officials, state and county, named in the Complaint. The injury occurred when the statute was enacted. The ministerial officials have no interest in the statute beyond the performance of their official duties, as to which they have no discretion if the statute is constitutional. It is the enactment of the law that was the injury to this plaintiff, and that injury occurred, if at all, in Frankfort when the statute was enacted into law.
If the reapportionment is unconstitutional, the entire citizenry of the state, not just this good citizen of Campbell County, have been injured. It is fundamentally bad policy to subject the reapportionment statute to being litigated in 120 different counties, where local concerns may well be expected to preempt statewide concerns in a political matter of this nature, and unreasonable to construe the venue statutes enacted by the General Assembly as having so provided. KRS 452.405(2), which is cited as the authority for extending local venue in this case, states that it provides venue:
“(2) Against a public officer for an act done by him in virtue or under color of his office, or for a neglect of official duty[.]”
It should be obvious that the intent of this statute is to confer local venue against public officials who act wrongfully or unlawfully in carrying out their duties, not to extend local venue to test the constitutionality of legislation of statewide impact because, incidentally, some of the ministerial acts necessary in carrying out the statute will be carried out by local officials, or even because state officials will provide local services in carrying out the challenged legislation.
As stated in the Appellees’ Brief:
“It would be an election nightmare if the Campbell Circuit Court ordered the county to utilize the old redistricting lines and elect a 69th House Representative for Campbell and Pendleton. At the same time, the other counties would elect a 69th House Representative from Campbell, Boone, and Kenton. Under this scenario, voters from all four counties would be unconstitutionally under-represented and over-represented.”
The matter to be decided here is not just whether the redistricting statute is unconstitutional for Campbell County, but whether the reapportionment statute violated Section 33 by unconstitutionally dividing counties, a matter of statewide impact.
The Court of Appeals held, correctly, that “Franklin County is the proper venue in this case.” This is because:
1) The nature of the injury alleged is an unconstitutional statute, and the injury occurred when the statute was enacted; and
2) If there was an injury, the real party defendant is the state government which legislated the redistricting, sitting in
*723Frankfort, and not the ministerial officials designated as parties defendant. These persons may be nominal defendants, but designating these parties, local or state, does not change the appropriate venue for this action.
The Majority Opinion states:
“We acknowledge that the larger question in this prohibition action is whether the proper venue when challenging any statute on state constitutional grounds lies exclusively within the confines of Franklin County, where the General Assembly meets and enacts legislation, and where the Governor signs the legislation into law, or in any of the other 119 counties where an individual may be harmed or affected by legislation.”
To state the question is to answer it. Common sense suggests the only appropriate venue for a constitutional question of this nature is Franklin County, the seat of the government, and common sense suggests that this is how the General Assembly intended for us to construe the venue statute.
STEPHENS, C.J., joins this dissent.