Request By:
Mr. Jack R. Underwood, Jr.
Assistant County Attorney
1129 Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your office has been requested by the office of the County Judge of Jefferson County to make a determination whether under KRS 439.177 the county judge in a city of the first class has authority to parole misdemeanants.
KRS 439.177(1) reads:
"(1) Any misdemeanant, sentenced for a period of thirty (30) days or more, may if sentenced by the police court of a city of the first, second or third class, petition the judge of the sentencing court for parole privileges. Any misdemeanant, sentenced by the police court of a city of the fourth, fifth, or sixth class or by any court other than in a city of the first three classes, may petition the county judge of the county in which he is held, for parole privileges."
The answer to your question is that under the provisions of KRS 439.177(1), the county judge may parole a misdemeanant if the quarterly court, or circuit court, or justice court, in Jefferson County was the sentencing court. Also if the police court, as sentencing court, in Jefferson County is in a city of the fourth, fifth, or sixth class, the county judge may parole the misdemeanant. We believe the court, in order to prevent a gap in the law, would interpret the statute to read "any misdemeanant, sentenced . . . by any court, other than a police court, in a city of any class, may petition the county judge of the county in which he is held, for parole privileges." (Emphasis added). Of course the statute does not literally mention any courts other than police courts. We do not believe that the courts would let the omission stand, since it omits reference to the circuit court, quarterly court, and justice court. This interpretation is necessary if the gap is to be avoided. It can be assumed that the legislature intended to cover all trial courts. Then the intent of the lawmakers, which is the soul of the statute, "must prevail over the literal sense and the precise letter of the language of the statute."
Fidelity & Columbia Trust Co. v. Meek, 294 Ky. 122, 171 S.W.2d 41 (1943) 48. So the courts have recognized that they have the power in construing a statute to delete or interpolate words to prevent an absurd consequence or to resolve an ambiguity in order to carry into effect the spirit, purpose, and intent of the lawmakers. Ibid.
This schematic statement represents our analysis of the statute: Sentencing CourtClass CityParole AuthorityPolice Court1, 2, 3Sentencing courtPolice Court4, 5, 6County judgeCircuit, quarterly, justiceAny classCounty judge
See OAG 73-53, which you have.
Since we conclude that the county judge in Jefferson County may parole misdemeanants under KRS 439.177 (1), if the sentencing court was the circuit court, quarterly court, or justice court, of Jefferson County, etc., you ask whether a county judge under this applicable circumstance can use the existing parole procedures provided by the statutes.
KRS 439.175 [parole in misdemeanor cases] was stricken down because the legislature totally failed to set up a workable method of parole precedure.