Request By:
Mr. Kenneth E. Hollis
General Counsel
Department of Labor
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Relying on OAG 73-430, the Department of Labor has not paid the advance filing fee when appealing workmen's compensation board opinions [see KRS 342.285] to circuit court over the past several years.
KRS 64.030 requires the circuit court clerk to collect, generally, in each "original action" in circuit court the sum of twenty dollars ($20.00) to be applied to the clerk's fees. We concluded in that opinion that an appeal taken by the Special Fund under KRS 342.285 is not an "original action" as contemplated by the statute. KRS 64.030, however, was repealed by S.B. 15, Ch. 14, 1976 Ex. Sess., § 491, effective March 19, 1977.
In an educational seminar concerning new court rules issued by the Supreme Court of Kentucky, emphasis was placed on the requirement that the service of summons fee be paid in advance upon filing. You ask whether the conclusion reached in OAG 73-430 [that the Department of Labor does not pay the advance filing fee] will still be applicable as of January 1, 1978.
As of January 1, 1978, the filing fee for a civil case in circuit court is seventy dollars ($70.00). KRS 23A.200 (1).
CR 4.01(1)(a), amended effective January 1, 1978, provides in part that all postage shall be advanced by the initiating party and be recoverable as costs. However, we see nothing in CR 4.01, as amended, providing for advance payment of filing fees.
The filing fee of $70 in civil cases in circuit court is not an "advanced filing fee" to be applied in the costs. It is merely a fee for the clerk's general services, and it is placed in the general fund of the state treasury. KRS 23A.215. The filing fee provision is so general as to embrace appeals taken to circuit court by the Special Fund, Department of Labor. However, the final question is whether such cost is mandatorily payable by the Commonwealth. KRS 453.010 provides that no judgment for costs shall be rendered against the Commonwealth in any action prosecuted by or against the Commonwealth in its own right. Costs may be paid by the Commonwealth when approved and allowed by the court. Thus KRS 453.010 provides for only a permissive paying of such costs by the Commonwealth.
It is our opinion that under KRS 453.010, the court is not required to mandate the paying of costs by the Commonwealth, since he merely "approves" the paying of such costs and his approval would have to be sought by an agent or person acting for the Commonwealth.
We conclude that: (1) The $70 filing fee, as applied to your department, is not mandatory; and (2) The fee should not be requested by your department to be approved by the court for payment, since it would be a rather useless thing. It seems useless for the Commonwealth to pay the costs out of one pocket and put it back into another pocket [general fund of state treasury] . We say this keeping in mind that the court has written that the law will not force any one to do a vain and useless thing.