Request By:
Mr. William E. Davis
Director
Administrative Office
of the Courts
403 Wapping Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise several questions affecting the Court of Justice.
Question No. 1:
"Is a peace officer required to place the appearance date on a citation issued by him which directs a person to district court, or is this to be done at the direction and at the discretion of the circuit clerk? "
It is our opinion that the statute [KRS 431.015], in requiring that the citation shall provide that defendant shall appear within a designated time, mandates that the peace officer issuing the citation must fill in appropriate blanks on the citation indicating precisely the date he must appear in district court. The citation is not a court process. Duncan v. Brothers, Ky., 344 S.W.2d 398 (1961) 400. However, the legislature has required, in enacting KRS 431.015, the issuing peace officer to name a date the defendant is required to put in a physical appearance in the court mentioned. This gives a defendant something definite to deal with. If the date were omitted when the citation copy is given to the defendant, he may never go down to court unless he is summoned or arrested under a warrant. The latter procedures were designed to be obviated by the citation process under the statute. Once the defendant shows up in the court, it is up to the court, through his clerk, as to when the matter will be actually heard.
The question here is not whether the defendant has the constitutional right to have an appearance date on the citation. The question is: Should the peace officer obey the mandate of the legislature in requiring that the citation must show when he is to appear. The answer is that the statute must be followed. Secondly, the statute does not guarantee that the defendant's appearance on the date stated will result in a hearing or disposition of the matter. That is up to the court of jurisdiction. Thus the court's docketing of cases is not being interfered with at all. But by the defendant's having a citation stating an appearance date, the judicial process will have a chance to operate and thus subserve the legislative purpose. The legislative purpose is to give defendants a chance, in minor infractions of the law, to voluntarily walk into court without having to be summoned or arrested under a warrant. Judges may sometimes forget that the average American does not like a summons or arrest in the context of misdemeanors involving minor infractions.
Where the defendant makes his appearance in district court on the date mentioned in the citation, and even if the court does not hear the case on that date, the court would be violating the legislative policy to issue a summons or a warrant for his appearance on the date the court finally sets for the case. If the defendant appears voluntarily under the citation on the date designated in the citation, the court should presume that defendant will appear on a subsequent date set for trial. Then if defendant does not show, a summons or warrant may be issued.
Question No. 2:
"If a defendant in district court is convicted of a misdemanor, but proceeds in forma pauperis and is declared an indigent by the court, who pays the sheriff for any services he may have performed in the case?"
If defendant is convicted of a misdemeanor and is declared by the court to be a pauper, the sheriff does not get paid. Under KRS 64.340 a sheriff can get paid for his services in the case only if: (1) The defendant is convicted of a misdemeanor and (2) The defendant pays over such fees or cost to the district clerk, who in turn would pay the sheriff. See also KRS 453.190.
Question No. 3:
"Is the state responsible for paying any fees to the sheriff for services he may have performed to the Court of Justice?"
Under KRS 24A.140(2), the sheriff shall be compensated for his services in the same manner and at the same rates as for similar services rendered to the circuit court. See OAG 78-193, copy enclosed, dealing in some detail with this subject.
Question No. 4:
"Under KRS 44.020, what does the term 'claims payable out of the state treasury' mean as far as it would relate to the Court of Justice? Would this require the circuit clerk to 'make out and certify' claims made by county officials (such as jailers, sheriffs, etc.) for money owing these officials payable out of the state treasury? Or is this the function of the county court clerk, with the circuit clerk's function merely being those of certifying claims against the Commonwealth based upon a judgment of the Court of Justice?"
The term "claims payable out of the state treasury" , as it appears in KRS 44.020, means claims, arising out of court actions, for which there are statutory provisions or appropriations. See § 230, Kentucky Constitution, and KRS 41.110. This would include statutory fees earned by local officials in court actions. Fees earned must be taxed as costs and included in the judgment. KRS 453.020; and Bell County v. Minton, 239 Ky. 840, 40 S.W.2d 379 (1931) 381.
Thus the circuit clerk should tax the various statutory fees and claims due in the case [district and circuit court cases] and include the costs in the judgment.
Since KRS 44.020 concerns only claims against the state allowed by courts, the inclusion of the "county court clerk" is a misnomer [since there is no county court] and is meaningless in that context.
KRS 44.020(2) provides that an order of a court allowing fees, etc., shall not be treated as a "judgment." This is misleading. The legislature intended to say that such judgments for claims shall not be "final judgments," since the Executive Department for Finance and Administration may contest a particular claim in Franklin Circuit Court, which has exclusive jurisdiction of such matters.