Request By:
Honorable Robert M. Kirtley
Assistant County Attorney
Courthouse
Owensboro, Kentucky 42301
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question concerns KRS 208.130(2), which reads:
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"(2) In counties containing a city of the first or second class, the fiscal court shall maintain a permanent detention home, either through arrangement with another public agency or with a private organization or agency, or by acquiring and operating the home as a county institution."
Recently the Daviess County Juvenile Judge issued an order in a juvenile proceeding directing the fiscal court to comply with the statute. In paragraph (5) of his order the trial commissioner directed the fiscal court, in effect, to comply with KRS 208.130(2), and he stated that the present detention facility does not comply with the statute. It requires the fiscal court to show to the court within 30 days evidence of its reasonable and affirmative action to comply, which may include several options listed therein and requires the naming of the specific option chosen.
One question is this: Can the juvenile judge legally order the fiscal court to comply with KRS 208.130(2)?
The juvenile judge is really a trial commissioner acting under the supervision of the county judge. KRS 25.280. He [the trial commissioner] can only discharge such duties as are assigned to him by the county judge.
Daviess County presently uses a portion of the Daviess County jail as a detention facility for juveniles.
Neither the trial commissioner nor the county judge has the statutory authority to order the fiscal court to comply with KRS 208.130. The subject matter here is not one falling within the jurisdiction of the county judge.
You ask whether the same definition of detention facility used in OAG 74-752 regarding Scott County applies to Daviess County, which contains a second class city.
The answer is "yes". We concluded in that opinion, and we conclude here, that two important aspects emerge from reading KRS 208.120 [temporary detention facilities] and 208.130 [permanent detention facilities] : (1) The "entirely-separate-from-adult-prisoners" concept expressed in KRS 208.120 applies equally to the permanent detention facility mentioned in KRS 208.130; and (2) The temporary situation facility of KRS 208.120 and the permanent facility dealt with in KRS 208.130 can be one and the same.
It is our view that, as regards counties containing a first or second class city or counties other than those containing a first or second class city, the legislature did not intend that the detention facility must be a distinctly independent and separate building apart from the county jail. If they had so intended they could have so easily said so. Thus the use of the county jail in Daviess County as a juvenile detention facility, temporary and permanent, is permissible, provided that such juveniles placed therein will be physically separated from the sights and sounds of all other portions of the jail. Skeans v. Vanhoose, Ky., 512 S.W.2d 520 (1974). Judge Allen, in Baker v. Hamilton (U.S.D.C.W.D., Ky - 1972) 345 F.Supp. 345, wrote that "an examination of [KRS] Chapter 208 reveals that the primary concern of the legislature was that children under the age of eighteen should be treated differently from adults who have committed crimes."
If the fiscal court of Daviess County wishes to continue to use the county jail as the location for the juvenile detention facility, such detention facility, if it is to comply with the statutes as interpreted by the courts, must meet certain requirements. The detention facility must not be an integral part of the jail system. It must physically separate such juveniles placed therein from the sights and sounds of all other parts of the jail. It must be indeed a separate and independent unit as concerns the rest of the jail. To put it simply these juveniles must be so housed that they will not consciously realize they are in the county jail in the usual sensory perceptive sense. The possibility of any communication with regular jail prisoners must be eliminated. Under the conditions outlined above, the Daviess County jail could be legally used as a juvenile detention facility.