Request By:
Mr. Donald C. Hines
Administrative Assistant-Detective
Office of the Commonwealth Attorney
Eighth Judicial District
1032 College Street
Bowling Green, Kentucky 42101
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your problem concerns the authority of a deputy circuit court clerk to certify as true copies various circuit court documents, such as indictments and warrants for either applications for requisitions in extradition matters or for forwarding to authorities in other states for their use in fugitive hearings.
KRS 30A.050(2) reads:
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"(2) Deputy circuit clerks, authorized by and under the direction of the circuit clerk, shall have full power to perform such duties as may be performed by the circuit clerk; and any act of a deputy clerk is entitled to the same faith and credit as that of the clerk. "
The deputy circuit clerk, as authorized and supervised by the circuit clerk, may perform any statutory function as may be performed by the circuit court clerk. Where the act of the deputy meets the test just mentioned, such act is entitled to the same faith and credit as that of the clerk.
KRS 30A.130 provides that "Every clerk shall prepare, attest and certify copies of all documents and records in his office upon payment of the charge established by statute."
Since the clerk is authorized to certify copies of documents in his office, the deputy clerk, if so authorized and supervised by the circuit clerk, may certify, on behalf of the circuit clerk, copies of documents in the circuit clerk's office.
The general statute, KRS 61.035, provides that "any duty enjoined by law or by the Rules of Civil Procedure upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy. " It is different from KRS 30A.050(2), in that the latter statute requires the circuit clerk to specifically authorize the deputy to perform a particular act. However, the specific statute controls over the general.
City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969) 247.
Article 4, Section 1 of the United States Constitution provides that "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." (Emphasis added). The Congress, in implementing Article 4, Section 1 of the Federal Constitution, enacted 28 U.S.C. Sec. 1738. That section provides in part that the records and judicial proceedings of any court of any state, or copies thereof, shall be proved or admitted in other courts within the United States and its territories, by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form. Under Section 1738 such records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its territories and possessions as they have by law or usage in the courts of such state, territory or possession from which they are taken. See, in connection with the federal certification law, the following case:
Helm v. Shackleford, 28 Ky. Reports 390, 5 J.J. Marsh. 390 (1831). Thus the form you enclosed [labeled "Certification Act of Congress"] is designed to meet the requirements of 28 U.S.C. Section 1738. Where the clerk has given specific authority to the deputy to sign the certificates as to true copies, the form should show the name of the circuit court clerk as indicated on the form, then underneath the name of the circuit clerk (signature space) this should be placed:
"By: (name and signature of deputy clerk" ). As relates to the judge's certificate, there should be inserted after this language "(clerk's name), who has signed the foregoing certificate" , this phrase, "through a duly authorized deputy. "
Where Kentucky wants to extradite a person to Kentucky, see KRS 440.370, relating to the Governor's application for requisition. Especially see subsection (3) of that statute, relating to the Governor's application for a requisition, and providing that the application shall be accompanied by three (3) certified copies of the indictment returned, or affidavit made before a judge and a warrant of arrest issued thereon, stating the offense with which the accused is charged, etc.