Request By:
Mr. Bremer Ehrler
Jefferson County Clerk
Courthouse
Louisville, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your questions relate to the justice of the peace, whose judicial duties were abolished by constitutional amendment, effective January 2, 1978.
Question No. 1:
"Must a justice of the peace still be bonded?"
KRS 25.650 required justices of the peace to execute at least a $5,000 bond with good sureties. However, that statute was repealed by S.B. 15, Acts of 1976 (Ex. Sess.), Ch. 14, § 492, effective January 2, 1978. We can now find no statute requiring a justice of the peace bond. Even where the justices of the peace serve on fiscal courts, they are not immediate custodians of money.
Question No. 2:
"May he still perform marriages and if so what can he charge for this service?"
A justice of the peace can perform marriages, provided he is authorized to do so by the Governor or county judge/executive of his county by a written executive order. KRS 402.050(1)(b). There are no statutory provisions for a fee for solemnizing a marriage. Any money for this is purely a matter of gift. Performing a marriage is not a judicial act. Thus KRS 402.050 is constitutional.
Question No. 3:
"May he still administer oaths of office?"
Although the administering of an oath outside of a judicial proceeding is not a judicial act in the strict constitutional sense, KRS 62.020 includes "any judge" among those authorized to administer oaths. (Emphasis added). A judge administering an oath to a witness in a trial performs a judicial act. Since the apparent legislative intent was to include judges of judicial courts, it is our opinion that justices of the peace cannot now administer oaths, since justices of the peace are no longer judges in the judicial and constitutional sense. Note that the statute does not include the specific term "justices of the peace". While judicial judges have the inherent judicial authority to administer an oath of witnesses in a judicial situation without the need for any statutory authorization, a judicial judge may administer an oath taken in a nonjudicial situation pursuant to KRS 62.020.