Request By:
The Honorable David L. Armstrong
Commonwealth's Attorney
30th Judicial District
Jefferson Hall of Justice
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; Miles H. Franklin, Assistant Attorney General
This Opinion is in response to the following questions:
1. Does the authority of the grand jury to investigate the occurrence of misdemeanors pursuant to RCr 5.02, allow it to indict on such misdemeanors?
2. If misdemeanors are indictable offenses, must they be joined to felony offenses on an indictment, or may an indictment consist solely of one or more counts of misdemeanor offenses?
3. If the grand jury does have jurisdiction to indict on misdemeanors, must these offenses be prosecuted in circuit court?
4. Would the joinder of felony and misdemeanor offenses in the same indictment be in any way determinative of the court in which the misdemeanors are to be prosecuted?
5. Would all indicted misdemeanors be required to be prosecuted at the circuit court level, or could they be disposed of at the district court level?
We conclude as follows:
ALTHOUGH AN INDICTMENT IS NOT REQUIRED TO PROPERLY CHARGE A MISDEMEANOR, THE GRAND JURY, PURSUANT TO ITS INVESTIGATIVE AUTHORITY, MAY INDICT FOR A MISDEMEANOR.
The grand jury, required by the State Constitution § 248, is a prosecutorial organ whose primary duty is to investigate charges of criminal misconduct which are within its knowledge or which are brought to its attention. See Matthews v. Pound, Ky., 403 S.W.2d 7 (1966). It has a duty to return an indictment against anyone who is shown to its satisfaction to be the subject of sufficient evidence to justify a charge, RCr 5.10. It thus has broad power to investigate the possibility of criminal misconduct and it may properly investigate any matter which it believes or suspects may lead to the institution of criminal charges.
Constitutionally, infamous crimes or felonies must be charged by indictment, while there is no such requirement for misdemeanors. Section 12 of the Kentucky Constitution requires all infamous crimes or felonies to be charged by indictment returned by the grand jury. See OAG 76-127, attached hereto. Because misdemeanors are not, generally infamous offenses, an indictment is therefore unnecessary to properly charge a misdemeanor offense unless one convicted thereof is subject to infamous punishment. Thus, although an indictment is not required for a misdemeanor offense, the grand jury may nevertheless indict for a misdemeanor, because of the implication of RCr 5.02 and 6.18. See OAG 78-168, attached hereto.
THE INDICTMENT WHETHER IT CONSISTS OF A MISDEMEANOR COUNT(S) OR A COMBINATION OF MISDEMEANOR AND FELONY COUNTS, WILL DICTATE WHICH COURT, DISTRICT OR CIRCUIT, WHEREIN PROSECUTION WILL OCCUR.
The jurisdiction of the circuit and district courts will be determined by whether an indictment consists of a misdemeanor offense (s) or whether misdemeanor and felony offenses are joined in the same indictment.
Reference is made to the following provisions:
Section 112(5) of the Kentucky Constitution states:
The circuit court shall have original jurisdiction of all justiciable causes not vested in some other court. . . .
Section 113(6) of the Kentucky Constitution provides:
The district court shall be a court of limited jurisdiction and shall exercise original jurisdiction as may be provided by the general assembly.
KRS 23A.010(1) states:
The circuit court is a court of general jurisdiction; it has original jurisdiction of all justiciable causes not exclusively vested in some other court.
KRS 24A.010(1) provides:
The district court is a court of limited jurisdiction, it has original jurisdiction in all matters specified in KRS 24A.110 to 24A.130.
KRS 24A.020 provides:
When jurisdiction over any matter is granted to district court by statute, such jurisdiction shall be deemed to be exclusive unless the statute specifically states that the jurisdiction shall be concurrent.
KRS 24A.110(2) states:
The district court has exclusive jurisdiction to make a final disposition of any charge or a public offense denominated as a misdemeanor or violation, except where the charge is joined with an indictment for a felony. . . .
Thus, district courts have jurisdiction over all misdemeanors to the exclusion of circuit court. The district court has exclusive jurisdiction to make a final disposition of any misdemeanor or violation which is not joined in an indictment for a felony, KRS 24A.110(2). This statute clearly supports the district court's jurisdiction to dispose of any non-felony criminal case. Indeed the charge may be brought by information, complaint, or indictment; but, as emphasized above, there is no constitutional requirement that the charge be brought by indictment. The circuit court may acquire original jurisdiction over a misdemeanor or violation only if it is joined in an indictment for a felony, KRS 24A.110(2) and 23A.010. Otherwise, the circuit court has appellate jurisdiction over any conviction for a misdemeanor or violation in the district court.
The question could be asked whether the grand jury can direct a misdemeanor indictment to the district court. This Office had occasion to consider this question previously in OAG 65-453. This earlier Opinion held that an indictment for a misdemeanor directed to an inferior court (now the district court) "amounts to no more than an expression of the opinion of the grand jury that the offender should be prosecuted" in the district court and "a recommendation to that effect." This conclusion was premised on the fact that the grand jury is "attendant upon the circuit court." Indeed the grand jury is an organ of the court which it serves in the sense that it is assembled by the court and is dependent on the court for the enforcement of its powers. See KRS 29A.210. Note that the criminal rules do not specifically provide for the returning of misdemeanor indictments to the district courts. Thus, while this Office is of the opinion that the grand jury has the authority to return misdemeanor indictments, ". . . a defendant charged under a misdemeanor indictment in district court cannot be heard to complain since the proper return of an indictment fulfills the highest constitutional standards for the charging of an offense. . . ." See OAG 78-168.
Finally, we choose to address a related matter, which is the troublesome problem of when the grand jury returns a misdemeanor indictment, not joined with a felony indictment, to the circuit court. We believe that the circuit court may not proceed, because it does not have jurisdiction to do so. Indeed the Criminal Rules do not provide for this situation.
While the Criminal Rules Revision Committee is revamping the criminal rules, 1 we suggest that if a misdemeanor indictment is mistakenly returned to circuit court, then the indictment should be quashed and the county attorney informed so that he may decide whether to bring an information in district court. Presently, there is no provision for transferring such an indictment to district court. Perhaps a proposed rule, if adopted, would allow for the transfer.
Footnotes
Footnotes
1 On May 18, 1978, Chief Justice John S. Palmore entered an order establishing a Criminal Rule Revision Committee, whose function is to review the entire body of Rules of Criminal Procedure to ascertain whether, in light of the implementation of the Judicial Article, the adoption of the Penal Code, and the beginning of the pretrial release system, these rules need to be changed. The Committee is interested in hearing from the Bar regarding problems concerning the Rules. Comments should be directed to William P. Thurman, Esquire, c/o Administrative Office of the Courts, 403 Wapping Street, Frankfort, Kentucky 40601.