Request By:
Mr. John W. Kearns
Harrison Circuit Court Clerk
Cynthiana, Kentucky 41031
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your problem concerning the fees of circuit court clerks in Kentucky was stated as follows:
"As President of the Kentucky Circuit Clerk's Association, I am hereby requesting an opinion in regard to the effective date of Senate Bill 15 as passed by the Special Session of the Kentucky Legislature in December 1976.
"We are vitally interested in the effective date as it will effect collection of fees in the Circuit Clerk's office from March 19, 1977 until January 2, 1978. As you are aware, Kentucky Circuit Clerk offices are fee offices and elimination of fees from March 19, 1977 until January 2, 1978 would completely stop clerk's operation. I would appreciate an opinion at the earliest possible time."
Specifically your question is whether or not, during the period from March 19, 1977 to January 2, 1978, there will be compensation provisions for circuit clerks.
Section 26 of S.B. 15 amends KRS 64.010, the basic fee schedule for clerks, by deleting from the operative provisions thereof clerks of the Court of Appeals and the clerks of circuit courts. At this point we must keep in mind that H.B. 20, of the 1976 Extraordinary Session, Section 19, effective January 2, 1978, provides in part that the salaries of circuit clerks shall be payable out of the state treasury. The salaries for clerks in the various counties are listed thereafter. Since the circuit clerks have historically been and are presently fee officers, the effective date of S.B. 15 as relates to the amendment of KRS 64.010 by Section 26 becomes indeed a crucial matter. Also note that sections 56, 57, 58, and 62 of H.B. 23, of the 1976 Extraordinary Session, create new sections in KRS Chapter 64 in providing for new fees in circuit court. Such new fees generally are to be placed in the general fund of the state treasury, and may be appropriated as provided by law. Sections 56, 57, 58, and 62 of H.B. 23 are to become effective on January 2, 1978.
So it can be seen that under H.B. 23 and H.B. 20 of the 1976 Extraordinary Session the new clerk's fees are to be paid into the state treasury general fund, subject to legislative appropriation, and the salaries of circuit clerks are to be paid out of the state treasury beginning January 2, 1978.
It was thus important that, in removing the circuit clerks from the old fee schedule of KRS 64.010 by enacting Section 26 of S.B. 15, such removal provision should become effective as of January 2, 1978. In section 492 of S.B. 15, relating to effective dates, it provided that variously named sections would become effective January 2, 1978. However, section 26 was not included. Based upon the literal situation, the removal of the circuit clerks from the old fee schedule of KRS 64.010 would go into effect March 10, 1977, since legislation takes effect ninety days after the close of the session [regular or extraordinary] unless the bill sets a later date, or contains an emergency clause. Section 55, Kentucky Constitution. Under the literal language of S.B. 15 the circuit clerks are removed from the old fee schedule of KRS 64.010 as of March 19, 1977, and since they do not apply the new fee schedules until January 2, 1978, there would be a hiatus or gap in the law in providing compensation to the circuit clerks from March 19, 1977 to January 2, 1978.
We note in passing that subsection (7) of Section 492 of S.B. 15 provides that "the provisions of KRS 64.010 shall stand repealed as to circuit clerks and actions in circuit court July 1, 1977 and as to other clerks and courts on January 2, 1978." In the total context of the bill and the Judicial Article, this subsection (7) makes no sense and we believe the courts would delete it.
Under S.B. 183 [Ch. 84, 1974 session] , Section 2, paragraph 5, the old inferior courts are to continue until January 2, 1978, at which time the district court will come into existence. In the Extraordinary Session of 1976, in implementing the Judicial Article just mentioned, it was obvious that the significant date, as relates to circuit clerks, in switching to the new court system, is January 2, 1978. It is readily understandable why H.B. 20 and H.B. 23 of the 1976 Extraordinary Session provide a new fee schedule for circuit courts and provide for furnishing salaries for the circuit court clerks out of the state treasury. Thus it is our opinion that the failure to include section 26 [which removes the circuit clerks from KRS 64.010] of S.B. 15 in Section 492 [providing an effective date of January 2, 1978] was obviously a clerical or grammatical error and was not intended to deprive the clerks of the circuit court of their fees during the period from March 19, 1977 to January 2, 1978.
A Legislative Research Commission note to KRS 64.010, prepared by Edith Schwab, Kentucky Statutory Revisor, indicates that the failure to include section 26 of S.B. 15 in the effective date provision of January 2, 1978, was deemed by the Administrative Office of the Courts to be an error.
If this issue were presented to the appellate courts, and considering that the circuit clerks are an integral part of the state's judicial system, and considering that a literal interpretation of S.B. 15 would result in the absurd or unreasonable conclusion that from March 19, 1977 to January 2, 1978, the circuit court clerks have no effective compensation provisions, it is our belief that the courts would hold the literal interpretation to be an absurd or unreasonable result and would thus reject such interpretation. See George v. Alcoholic Beverage Control Board, Ky., 421 S.W.2d 569 (1967) 571. The courts, we think, would not leave the circuit clerks dangling as parachutists in a thicket of statutory drafting error. We cannot imagine that the courts would suggest that this urgent problem should be solved by a specially convened session of the legislature.
The court has held that "the courts may supply clerical or grammatical omissions in obscure phrases or language of a statute in order to give effect to the intention of the Legislature, presumed or ascertainable from the context, or to rescue the act from an absurdity." (Emphasis added). Hatchett v. City of Glasgow, Ky., 340 S.W.2d 248 (1960) 251.
We thus conclude that the circuit clerks in Kentucky should continue to apply the fee statute, KRS 64.010, until January 2, 1978.