Request By:
Honorable Randall T. Bentley
Letcher District Judge
Courthouse
Whitesburg, Kentucky 41858
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Letcher County Sheriff's Department has refused to serve/execute criminal warrants or other process issued by the Letcher County Trial Commissioner. See KRS 24A.100 and Section 113, Kentucky Constitution. Section 113(5) of the Kentucky Constitution provides that in any county in which no district judge resides, the chief judge of the district shall appoint a trial commissioner who shall be a resident of such county and an attorney, if one is qualified and available. Those are the qualifications. Other trial commissioners with like qualifications may be appointed by the chief judge in any judicial district upon certification of the necessity therefor by the Supreme Court of Kentucky. All trial commissioners shall have power to perform such duties of the district court as may be prescribed by the Supreme Court. The trial commissioners' compensation shall not exceed $7200 per year. KRS 24A.100.
Your trial commissioner issues all criminal process after regular business hours for the protection of the public, and performs that duty in addition to other tasks any time you are not available to issue legal process, e.g., in time of illness, vacation, or while you are on the bench conducting trials.
Under SCR 5.030, a trial commissioner of the district court has the authority to issue search warrants and warrants of arrest. That authority, however, is subject to review by the chief district judge or by another judge of the district designated for that purpose by the chief judge in the county for which he is appointed as trial commissioner.
When sessions of the district court are held in the county courthouse or other county-owned facility, state-owned or leased facility, special district facilities, or private facilities, the sheriff shall be responsible for attending court, keeping order, "and providing the same services to district court as are provided to the circuit court." (Emphasis added). KRS 24A.140. We assume that district court is being held in one or more of the facilities mentioned above. When sessions of the district court are held in city facilities, the city police or marshal shall be responsible for waiting on the court, etc., as described above. KRS 24A.140(3).
It is our opinion that the Letcher County Sheriff must execute and make due return on all criminal process lawfully issued by the Letcher County Trial Commissioner (process as authorized by Kentucky Supreme Court under Rule 5.030) and placed in the sheriff's hands or with his lawful deputies. See KRS 70.070.
The remaining question is whether or not the trial commissioner can issue criminal process after regular business hours.
RCr 3.02 provides in part that an officer making an arrest under a warrant issued upon a complaint shall take the arrested person without unnecessary delay before a magistrate as commanded in the warrant. What constitutes "unnecessary delay" is entirely dependent upon the facts and circumstances of each case. However, where there is no magistrate [judge of circuit or district court or trial commissioner of district court] available after such business hours, under RCr 3.02 the sheriff can place the person arrested in county jail for the night. The next morning, when the district judge or trial commissioner is available, the sheriff should take the defendant before such magistrate [see RCr 1.06(a)]. See
Stacy v. Commonwealth, Ky., 254 S.W.2d 917 (1953) 920, holding that the arresting officers making the arrest on Sunday had no obligation to take the arrested persons before a magistrate on that day, and thus defendants were lawfully placed in the county jail, awaiting Monday, when court would be available.
Judge Stanley, for the court, in
Bailey v. Shrader, 265 Ky. 663, 97 S.W.2d 575 (1936) cited an earlier Kentucky case on the point that "The law does not require a judicial officer to hold his court at all hours of the night and day. . ."
It is our opinion that there is nothing prohibiting the district court or trial commissioner from issuing criminal process after regular business hours.
This is written in 6A C.J.S., Arrest, Section 51, p.p. 121-122, concerning the execution of arrest warrants:
"Police officers are required to use diligence in the execution of arrest warrants. Ordinarily a warrant for arrest should be executed promptly and within a reasonable time, and before the offense is barred by the statute of limitations. However, the duty to attempt with reasonable promptness to execute such warrant cannot be closely confined or strictly applied. The exercise of reasonable diligence without undue delay does not inexorably call for absolute immediacy, within reasonable limits of time, the officers charged with the execution of an arrest warrant are entitled to consider their other duties, work schedules and convenience. "
Thus except where the district court or trial commissioner indicates a need for immediacy in serving a warrant, the sheriff must exercise reasonable diligence in executing the process, bearing in mind his other duties, work schedule and convenience.