Request By:
Ed W. Hancock, Esq.
Deputy Secretary for Legal Affairs
Department of Transportation
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning the Commonwealth's obligation to pay court costs, advance fees and mileage fees for the service of process in light of two bills enacted by the regular session of the 1978 Kentucky General Assembly.
You initially refer to CR 54.04, which provides in part that costs against the Commonwealth, its officers and agencies shall be imposed only to the extent permitted by law, and KRS 453.010 stating in part that in any civil action the costs may be paid by the Commonwealth when such costs are approved and allowed by the judge of the court in which the case was filed. The Commonwealth presently is required to pay court costs only in eminent domain actions since KRS 416.620(4) provides that all costs in the circuit court shall be adjudged against the condemnor. You also cite KRS 64.080, exempting the Commonwealth from payment of the advance fee for serving process, and KRS 64.095, exempting the Commonwealth from the payment of the mileage allowance for service of process.
You next refer to House Bill 46 and Senate Bill 163 enacted by the regular session of the 1978 Kentucky General Assembly. Sections 4 and 8 of H.B. 46 amend KRS 23A.200 and 24A.170 to increase the mileage allowance for serving process from 14 cents per mile to the rate paid state employes (currently 16 cents per mile) . These sections do not refer to the Commonwealth being exempt but nothing therein amends or changes KRS 64.095 containing the exemption. H.B. 46 leaves the fee for serving process at $3.00 but requires advance payment of costs to the circuit clerk or process officer when the action is filed or the service is requested.
Section 3 of S.B. 163 amends KRS 64.095 to increase the mileage allowance for service of process from 10 cents per mile to the rate paid state employes which is consistent with the mileage allowance in H.B. 46. S.B. 163 does not require advance payment of any of the costs and section 3 thereof retains the exemption of the Commonwealth from the payment of the mileage allowance for service of process.
You state that neither KRS 23A.200 nor KRS 24A.170, relating to fees in civil cases, enacted in 1976, specifically require the Commonwealth to pay such fees which is consistent with KRS 453.010. Neither H.B. 46 nor S.B. 163, enacted in 1978, require the Commonwealth to pay these fees. In the case of
Commonwealth, Department of Highways v. Bargo, Ky., 350 S.W.2d 153 (1961), the Court held that since the statute did not specifically require the Commonwealth to pay the tax in question, it was protected from the statute's requirement by sovereign immunity. Based on the Bargo case, supra, and the exemptions in KRS 64.080 and 64.095, it is your opinion that the Commonwealth is exempt from paying these costs but it may voluntarily pay such costs under the conditions set out in KRS 453.010.
In view of H.B. 46 and S.B. 163, you ask the following questions:
"(1) Except as provided for in KRS 416.620, is the Commonwealth of Kentucky still authorized but not required to pay costs in civil actions to which it is a party?
(2) Does the Commonwealth of Kentucky have to advance fees as required by House Bill 46?
(3) In view of KRS 64.080 and 64.095 is the Commonwealth of Kentucky exempt from paying the advance fee and the mileage allowance for service of process? "
We agree with your conclusion that the Commonwealth, except for the provisions of KRS 416.620, pertaining to proceedings for eminent domain, is exempt from paying costs, but that it may, pursuant to KRS 453.010, pay costs when such costs are approved and allowed by the judge of the court in which the case was filed. Neither the legislation enacted in 1976 nor that enacted in 1978 has amended or changed the statutory provisions set forth in KRS 453.010. Furthermore, none of the newly enacted legislation contains any provision under any statutory section specifically requiring the Commonwealth to pay the costs discussed in your letter.
H.B. 46 amended both KRS 23A.200 and 24A.170 to provide that the filing fees for civil cases in both circuit court and district court shall be paid to the clerk at the time the case is filed. In connection with whether the Commonwealth must pay such fees, we direct your attention to OAG 77-775, copy enclosed, where we said:
"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."
In the above-mentioned opinion we said the court is not required to mandate the paying of costs by the Commonwealth. It was our opinion that the $70 filing fee as applied to the state's Labor Department is not mandatory and the fee should not be requested by the department to be approved by the court for payment. It would be rather useless for the Commonwealth to pay the costs out of one pocket and put it back into another pocket (general fund of state treasury) . Thus, the filing fees mentioned in H.B. 46 are not mandatorily payable by the Commonwealth.
None of the newly enacted legislation mentioned in your letter amends KRS 64.080, exempting the Commonwealth from payment of the advance fee for serving process, or that portion of KRS 64.095, exempting the Commonwealth from the payment of the mileage allowance for service of process. While newly enacted statutory amendments, in several places, provide that the sheriff or other officer serving process shall be paid at the prevailing rate applicable for state employes in connection with the mileage allowance for service of process, nothing in these amendments requires the Commonwealth to pay for such services. Thus, the exemptions in KRS 64.080 and 64.095, applicable to the Commonwealth, continue to apply.