Request By:
Mr. William E. Davis
Director
Administrative Office of the Courts
Route 8, Twilight Trail
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have forwarded to us a letter from John F. DeSpain, Pretrial Officer of the 19th District, in which he raises a question about telephone orders for the release of prisoners before trial.
He has been following the accepted procedure of contracting the appropriate judge by phone for release of a defendant after completing his interview and verification. RCr 4.06. If the defendant is released, the judge authorizes him to sign his name to the release form which he initials in the following manner:
"William F. Murphy (by JFD ph)"
His question is whether or not the pretrial officer can legally sign the judge's name to the release form (by initialing same), where the judge exercising jurisdiction over the defendant desires to release defendant pending trial, as provided for in KRS 431.520.
The statute provides in part that any person charged with an offense shall be "ordered released" by a court of competent jurisdiction pending trial on his personal recognizance or upon execution of an unsecured bail bond in an amount set by the court or as fixed by the Supreme Court as provided by KRS 431.540, unless the court determines, in the exercise of its discretion, that such a release will not reasonably assure the appearance of the person as required. When such a determination to release is made, the court shall, either in lieu of or in addition to the above methods of release, impose any of certain conditions of release enumerated therein. (Emphasis added).
Subsection (5) of KRS 431.520 reads:
"Any person charged with an offense shall be ordered released by a court of competent jurisdiction pending trial on his personal recognizance or upon the execution of an unsecured bail bond in an amount set by the court or as fixed by the Supreme Court as provided by KRS 431.540, unless the court determines, in the exercise of its discretion that such a release will not reasonably assure the appearance of the person as required. When such a determination is made, the court shall, either in lieu of or in addition to the above methods of release, impose any of the following conditions of release:
* * *
"(5) A court authorizing the release of a person pursuant to this section shall cause the issuance of an appropriate order containing a statement of the conditions imposed, if any, shall cause such person to be informed of the penalties applicable to violations of the conditions of his release, and shall cause him to be informed that a warrant for his arrest will be issued immediately upon any such violation;"
A local public defender, Robert Gallenstein, and who is running unopposed for district judge, feels that such a release is invalid unless signed by the proper judge who is exercising jurisdiction.
It can be readily seen that if the law requires the judge of jurisdiction to personally sign all of his pretrial release orders, an inordinate amount of his time will be taken. It would obviously involve transportation problems and would result in substantial delay in the proper release of defendants under this bail bond legislation. The net effect would be that such a system would be unworkable and would undoubtedly impose unnecessary hardship upon a waiting defendant. While KRS 431.520 is ambiguous on this point, we find a penetrating ray of light in the last paragraph of the preamble to the bail bond law [H.B. 254, Ch. 2, 1976 Acts, p. 1:
"Whereas, it is the intent of the general assembly of the Commonwealth of Kentucky to provide for a uniform workable system for affording persons charged with bailable offenses their constitutional rights to pretrial release that will insure appearances as ordered by the courts without imposing undue hardships upon those persons." (Emphasis added).
The general rule is that the preamble may be resorted to in interpretation [of statutes] only when there is ambiguity in the statute.
Louisville Memorial Gardens v. Carpenter, Ky., 261 S.W.2d 627 (1953) 628. Ambiguity is what we have here in KRS 431.520(5). When we consider the underlying purpose of the act to provide a workable system without imposing hardship upon the person charged, it then appears that to require the judge's personal signature would indeed be to violate this legislative purpose.
When considering the purpose of the legislation, and taking note of the factual realities attending such releases, it is our opinion that KRS 431.520(5) authorizes releases by court orders effected through the agency or assistance of pretrial officers. In other words, we believe the affected judges can legally direct, through telephonic conversation, the pretrial officer to use a prescribed form or draw an appropriate order of release as the judge directs, and can direct such pretrial officer to sign the judge's name to the form release or order and initial same. See RCr 4.06 (1976 amendment). The use of the words "cause the issuance" strongly suggests the authority of the judge to employ his pretrial officer as an agent or assistant of the court to draw the order or use the form and sign the judge's name. (Emphasis added). It must have been forseen that the physical signing of the judge would be unworkable. KRS 431.515(1) buttresses our view, we think. That subsection provides that "all trial courts in this Commonwealth having jurisdiction of criminal causes shall provide such pre-trial release investigation and services as necessary to effectuate the purposes of KRS 431.510 to 431.550." (Emphasis added). Note that RCr 4.14 provides that the court shall cause the issuance of an order containing a statement of any conditions imposed upon the defendant for his release. (Emphasis added). This is in harmony with the language of KRS 431.520(5).
This statute [KRS 431.520(5)] constitutes a variance in principle from the requirement that judges must personally sign judgments and orders. See RCr 11.04; and
House v. Commonwealth, Ky., 466 S.W.2d 949 (1971). See also CR 79.02, RCr 1.08, and
Tankersley v. Gilkey, Ky., 414 S.W.2d 589 (1967). The general rule is that a judgment is void and of no effect in the absence of its official and personal signing by the trial judge.
Davis v. City of Bowling Green, Ky., 289 S.W.2d 506 (1956) 508. However, we believe the legislative policy expressed in KRS 431.520(5) cannot be successfully attacked. "Except where limitations have been imposed by the federal or state constitution, or by the valid treaties and acts of Congress, the power of a state legislature is unlimited and practically absolute . . ." 16 Am.Jur.2d, Constitutional Law, § 228, p. 477. Also see §§ 27 and 28, Kentucky Constitution.
There is a sound reason underpinning the usual requirement that court orders must be signed personally by the judge of jurisdiction. It is simply that a court judgment dealing with the personal security, constitutional rights, or property of a person must be effected by the direct and personal act of the judge, which fact is attested by his personal signing of the order or judgment. But here we are dealing with the pretrial release of a person accused of crime. The strictness of the personal signing of such an order is not essential.
Here the legislative policy is that if pretrial release is to be done at all, it should be done quickly.