Request By:
Mr. Raymond E. Lape, Jr.
Attorney at Law
331 York Street
Newport, Kentucky 41071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an opinion on behalf of James Murphy, Sheriff of Campbell County, Kentucky, on questions relating to the service of process by Kentucky sheriffs.
Primarily he is concerned with the question as to who is required to serve summons and warrants in certain cases. As a general proposition under KRS 70.070, the sheriff is required to execute and make due return of all notices and process which come to him. This simply means that he must serve in his county any process placed in his hands by the judge of any court. See KRS 70.140 and 24A.140, relating to the sheriff's serving the circuit and district courts.
There is an exception to the general rule above stated. Under H.B. 304, Section 2, enacted in the regular session of 1978, effective June 17, 1978, any warrant issued by district court for an offense committed within a city shall be served by the police department of that city if the warrant is to be served within the city limits. Obviously under that provision of H.B. 304, if the warrant is issued by a district court for an offense committed within the city, and the defendant may be found in the unincorporated area of the county, then the district court can place the warrant in the hands of the sheriff for service of process.
H.B. 304, Section 1, amended KRS 431.410 to provide that the issuance of a summons rather than an arrest warrant shall be mandatory for all offenses which are deemed violations as defined in KRS 532.020(4) "and traffic infractions for which a sentence of a fine only can be imposed" unless the judicial officer finds that:
"(1) The defendant previously has failed to respond to a citation or summons for an offense; or
"(2) He has no ties to the community and there is a substantial likelihood that he will refuse to respond to a summons; or
"(3) The whereabouts of the defendant are unknown and the issuance of an arrest warrant is necessary in order to subject him to the jurisdiction of the court; or
"(4) Where arrest is necessary to prevent imminent bodily harm to the accused or to another; or
"(5) For any other good and compelling reason as determined by the judicial officer. " (Emphasis added).
The sheriffs must keep in mind, however, that KRS 431.410 is really directed to the courts and not to the sheriffs, since it is the judges of the courts, generally, who issue process. In other words, it is not a problem of the sheriffs to wonder as to whether a summons or warrant should be issued. That is strictly up to the courts. The sheriff's concern is the service of the process once the court puts it in his hands.
Next you say suppose an original citation is issued within one city and it becomes necessary for a judge, or other officer having the power to issue, to issue a summons or warrant when the defendant lives in another city. You ask: Whose duty is it to make the service, the police agency of the city where the defendant resides or the county sheriff?
Under H.B. 304, Section 2, if a warrant is issued by a district court for an offense committed in a city, then the warrant would have to be served by the police department of the city if the warrant is to be served within the city limits. If the district court issues a summons and places it in the hands of the sheriff, then the sheriff will have to serve the summons even though he is found in the city of his residence. Further, if the summons or warrant is issued by the circuit court, and the warrant or summons is directed to the sheriff, then the sheriff will have to serve it, regardless of whether the defendant can be found in a city or within the unincorporated area of the county.
Next you raise this question:
"If a county has a duly constituted county police department and it is necessary to issue a summons or a warrant based upon a citation issued by a county police agency, whose duty is it then to serve such summons or warrant, the issuing agency, i.e., county police or the county sheriff? "
The answer is that if the circuit or district court places a summons or warrant with the sheriff for service, then the sheriff will have to serve it. We assume such offense was not committed within municipal boundaries.