Request By:
Mr. George H. Kunzman
Judge
Criminal Branch, Third Division
Courthouse Annex
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
This is in response to your letter in which you request our opinion as to whether or not a district judge has authority to grant parole privileges for certain misdemeanants under KRS 439.177.
Question No. 1:
"Does Section KRS 439.177 give the Chief District Judge authority to grant parole privileges for certain misdemeanants even though the sentencing district judge is available?"
The answer is "no". KRS 439.177 vests the parole function solely in the district judge of the sentencing court. Thus the chief district judge would not have the authority under the statute to parole unless he were at the same time the sentencing court in the case. KRS 439.177(1) provides that "any misdemeanant, sentenced for a period of thirty (30) days or more, may petition the district judge of the sentencing court for parole privileges."
Question No. 2:
"Does Section KRS 439.177 give the Chief District Judge or any district judge (within the county) authority to grant parole privileges for certain misdemeanants sentenced for a period of thirty (30) days or more where the sentencing judge is a circuit court judge who has lost jurisdiction of the case?"
Under the express terms of the statute, it is our opinion that no district judge can grant parole unless he was the sentencing court.
Question No. 3:
"Does the County Judge of Jefferson County still have authority to grant parole privileges to misdemeanants confined in County Jail for a period of thirty (30) days or more, where the sentencing was imposed by a circuit court judge?"
First, Peck v. Conder, Ky., 540 S.W.2d 10 (1976) 12, contains this significant view of the parole statute as it concerns the judiciary. It was in response to the circuit court's position that if KRS 439.177 is valid a county judge may countermand the action of circuit court. The court wrote this:
"This overlooks the fundamental fact that when a person has been convicted of a crime and has begun to serve his sentence the function and authority of the trial court is finished. What then happens to the prisoner is entirely in the bailiwick of the executive branch of government, and is no business of the courts, including the trial court. In granting parole the county judge acts in an executive capacity, not a judicial capacity.
Murphy v. Cranfill, Ky., 416 S.W.2d 363, 365 (1967)."
Peck narrowly holds that under KRS 439.177 the county judge, prior to the 1976 amendment, 1 in his capacity as an officer of the executive branch, may grant parole to a misdemeanant. Prior to January 2, 1978, the county judge had executive and administrative functions as well as a judicial function. On and after January 2, 1978, the county judge/executive has only administrative and executive functions. He has been divested of his judicial function.
The answer to question 3 is that the county judge/executive of Jefferson County [or any county] has no authority to grant parole privileges to misdemeanants under KRS 439.177, since the 1976 amendment (Ex. Sess.) Ch. 14, § 446, deleted the county judge from the statute. It is our view that the county judge/executive, under the language of Peck v. Conder, above, could constitutionally be given the authority to parole misdemeanants by the legislature. However at present, there is no statute giving them such authority, regardless of whether the sentencing court is a circuit court judge or a district judge.
Finally, as we concluded in OAG 78-150, copy enclosed, it is our opinion that the General Assembly cannot, under the constitution, confer the executive power of parole upon any judge of the Court of Justice. In
Huggins v. Caldwell, 223 Ky. 468, 3 S.W.2d 1101 (1928) 1105, the court held that an act attempting to confer upon the circuit judge the authority to parole convicted prisoners violates §§ 27 and 28 of the Kentucky Constitution. Section 28 of the Constitution provides that no person of a branch of government shall exercise any power properly belonging to either of the other branches. See also the case of
Commonwealth v. Williamson, Ky., 492 S.W.2d 874 (1973), which cites approvingly several cases on the point that after a court has lost statutory control over its judgment imposing a criminal sentence, the court cannot exercise the power, whether called probation, parole or pardon, to suspend the execution of the sentence.
In summary, KRS 439.177 vests the parole authority only in the sentencing district judge. However, for reasons given above, it is our opinion that the statute, in vesting the parole function in the sentencing district judge, is unconstitutional. In addition, the county judge/executive, under the statutes presently, has no authority to parole misdemeanants. If the legislative policy of extending parole to misdemeanants is to be legally and constitutionally effective, KRS 439.177 will have to be amended so as to substitute an executive officer (the county judge/executive would do) for the district judge. As it now stands, we are of the opinion that the appellate courts would declare KRS 439.177 to be unconstitutional and inoperative.
Footnotes
Footnotes
1 Senate Bill 15, 1976 Acts (Ex. Sess.) Ch. 14, § 446, amended KRS 439.177 by deleting from the parole authority police judges and county judges and substituting therefor the district judge of the sentencing court.