Request By:
Dr. Joe Uveges
860 Nutwood Avenue
Bowling Green, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Question No. 1: Is the salary of $560 per month for magistrates on fiscal court [1978] valid? The old monthly limit of $260 has been retained in KRS 64.530. However, the justice of the peace was added to the list of county officials placed in the annual rubber dollar adjustment statute, KRS 64.527. See S.B. 15, Ch. 14, § 38, 1976 Extraordinary Session. He was left out of KRS 64.527, as amended by H.B. 17, Ch. 17, § 19, 1976 Extraordinary Session. However, when the two bills are read together, the justice of the peace would probably be held by the courts to be retained in the statute. In this ambiguous situation, the courts might uphold it. The troublesome factor is that the magistrate is only a part time officer. The courts might upset any salary deemed to be unreasonable under the total circumstances. Under the rubber dollar principle the fiscal court, in authorizing salaries paid out of the county treasury, can adjust such salaries anytime [even during term] where the maximum compensation has not been attained. Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965); and Dennis v. Rich, Ky., 434 S.W.2d 632 (1968). The fiscal court is required to set salaries not later than the first Monday in May of the year of the election. KRS 64.530. You can see that the compensation problem is not as simplistic as it might appear, and this is a matter for corrective legislation such that the justice's compensation will be reduced to a certainty. Note that the Bobbs-Merrill official publication of the Kentucky Revised Statutes [1977 Interim Supplement] shows KRS 64.527 [annual rubber dollar adjustment statute] as amended last by S.B. 15, Ch. 14, § 38, 1976 Acts of Extraordinary Session. And thus the officially published statutes shows KRS 64.527 as including justices of the peace within its operative terms.
Question No. 2: Can a magistrate be paid for judicial duty if he tries no cases? The answer is "no". Even though the fiscal court authorized salaries for holding court [KRS 64.255], they must actually try criminal cases to qualify for pay. Wilson v. Garner, Ky., 516 S.W.2d 333 (1974). The fiscal court should direct the county attorney to recover this money if they earned no part of it, assuming the affected magistrates do not voluntarily put the money back into the county treasury. If the fiscal court does not act, when called upon, to sue for recovery, a taxpayer's suit could be filed in circuit court against the offending magistrates seeking recovery for the county treasury. The fact that the magistrates are available for trials is not sufficient to justify salary payment. Further, conducting marriages will not qualify them for compensation. Conducting marriages is not equivalent to holding court, although holding court sometimes ensues from a marriage. The court said in Wilson v. Garner, above, that compensation may be paid "only in direct proportion to the amount of services rendered in the exercise of criminal jurisdiction." (Emphasis added). See also KRS 64.410 and § 3, Kentucky Constitution, which prohibit the payment of tax money to persons who perform no public service. Of course the office expense payments are authorized by KRS 64.258, which is in no way dependent upon whether they have an office or whether they try criminal cases. See Roberts v. Hickman County Fiscal Court, Ky., 481 S.W.2d 279 (1972) 282.