Request By:
Mr. James E. Sparks
Justice of the Peace
2711 Melvin Street
P.O. Box 851
Flatwoods, Kentucky 41139
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Greenup County has the commission type of government. As of January 2, 1978, the justices of the peace in that county can no longer perform judicial duties, civil or criminal. See constitutional amendment in S.B. 183 (Ch. 84, 1974 Acts), Section 2, paragraph 5.
You ask if the office has been abolished. The answer is: not by the Constitution. Under § 124, Kentucky Constitution, beginning with January 2, 1978, justices of the peace retain any nonjudicial powers found in the statutes.
You ask if they will still be elected. The answer is that qualified persons can run for that office, since the constitutional office has not been abolished by the Constitution. See § 99, Kentucky Constitution.
You ask about the duties of justices of the peace in a county having the commissioner type of government in 1978.
A justice of the peace can solemnize marriages only if the Governor authorizes it. KRS 402.050(1)(b). However, no fee is prescribed for that service.
A justice of the peace can approve an application for appointment as notary, but no fee can be charged. KRS 423.010.
A justice of the peace is a "conservator of the peace." KRS 25.640 and § 142, Kentucky Constitution. A conservator of the peace has the power to arrest, suppress riots, and to place under confinement or peace bond breakers of the peace who break the peace in the presence of the conservator. See OAG 68-324, copy enclosed. Here we are speaking of nonjudicial functions.
You can see that in 1978, in a county having the commissioner type of government, there is practically no authorized statutory function for a justice of the peace.
In Section 31 of S.B. 15 [1976 Extraordinary Session] KRS 64.250 is amended. However the statute as amended provides, in counties of over 250,000 in population, that each justice of the peace shall be paid a salary, out of the county treasury, determined by fiscal court at a rate no less than $9600 per year but no greater than $12,000 per annum. Jefferson County has the commissioner system of government. In 1978 there will be virtually nothing for them to do under present statutes. Similarly there will be virtually nothing to do in other counties having the commissioner system.
An expense allowance may be paid to justices of the peace under KRS 64.258, as amended by Section 32, S.B. 15 [1976 Extraordinary Session], to assist with expenses of their office. Justices of the peace are included in the annual adjustment of compensation as provided in KRS 64.527, as amended by Section 38, S.B. 15 [1976 Extraordinary Session].
Although there are statutes, as mentioned above, still retained for 1978 which would purport to authorize compensation and expense allowances for justices of the peace, even in counties having the commissioner type of government, it is our opinion that any compensation or expense allowances afforded justices not serving on fiscal courts would raise a serious constitutional question. In
Wilson v. Garner, Ky., 516 S.W.2d 333 (1974), the court held that actual performance of judicial duties is necessary to entitle a justice of the peace to compensation under KRS 64.255. We believe that same principle would apply here. In other words, performance of some statutory duties is necessary to entitle justices of the peace to compensation and expense allowances in 1978. See § 3, Kentucky Constitution, providing that no person can receive public compensation except in consideration of public services rendered. See
Barnes v. Adams, Ky., 305 S.W.2d 754 (1957). If no public services are performed, then the acceptance of compensation or expense allowances by an elected official would take on a purely private character. Sections 3 and 171 of our Constitution expressly prohibit such expenditures. 1
Footnotes
Footnotes
1 KRS 64.410(2)(c) prohibits fees to officers where no services are actually rendered.