Request By:
Mr. W. C. Flannery
Rowan County Judge/Executive
Courthouse
Morehead, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an opinion of this office on the matter of the disturbing of a meeting of the fiscal court.
Question No. 1:
"Is it the duty of the sheriff to follow my orders by escorting a person or persons who are committing a disturbance out of the court meeting that is in session? "
The word "disturb" is defined by Webster's Seventh New Collegiate Dictionary, pages 243-244, as meaning "to throw into disorder" or to "interfere with" or to "interrupt". The case of
Lowery v. Adams (U.S.D. Ct. W.D. Ky. -1972) 344 F.Supp. 446 involved a civil rights action by students subject to disciplinary measures by a state university. One of the factual facets related to a charge that the students created a "disturbance" at the alumni banquet. The court wrote this about the definition of a disturbance at pages 456-457:
"The word 'disturbance' is said in Webster's International Dictionary to mean:
'1. An interruption of a state of peace or quiet, or of a regular procedure; as, a disturbance of religious exercises.
2. Confusion of the mind; agitation of the feelings.
3. Violent agitation in the body politic, public commotion.
4. Law. The hindering or disquieting of a person in the lawful and peaceable enjoyment of his right; the interruption of a right; as, the disturbance of franchise, common, ways, tenure, or patronage.
Syn -Brawl, turmoil, uproar, hubbub, derangement, confusion, agitation, perturbation, annoyance.'"
The court also said in Lowery, above, that "The court takes cognizance of the fact that the words 'creating a disturbance' are in themselves quite vague and have been held in the construction of criminal statutes to be so vague and indefinite that they render those statutes unconstitutional." The caveat is that the term "disturbance" is a rather vague term; and it can only take on a realistic meaning in the concreteness of an actual, factual situation.
It is contemplated that a deliberative body, such as a fiscal court, will often be caught up in spirited debated among the membership. This is usual or normal in the realm of parliamentary procedure. It is our opinion that the presiding officer of the fiscal court (normally, the county judge/executive) may call on the sheriff or deputy to remove from the proceedings any person, including any member of the fiscal court, who is actually engaged in a disturbance of the fiscal court as defined above. However, the chair must be very careful that there is actually a "disturbance" in the strictest sense, and not merely parliamentary or fiscal court debate and discussion. See KRS 70.140.
Question No. 2:
"Is it the statutory duty of the sheriff or his deputy to attend my court sessions through their entire session and supply the needs to my court that is statutorily bound to do?"
KRS 70.140 reads:
"The sheriff shall, by himself or deputy, attend and keep order in the fiscal court and any court of the Court of Justice and shall obey the orders of said courts."
It is mandatory that the sheriff, or deputies, attend and keep order in all fiscal court meetings. Here again, the sheriff or deputy must carefully distinguish between an orderly conducted meeting of discussion and debate and a disorderly meeting.
Cornett v. Chandler, Ky., 307 S.W.2d 918 (1957) was a case in which a sheriff struck John Y. Brown, Sr., on the head with his fist, knocking him unconscious. The court said that was the type of conduct the sheriff is supposed to prevent.
Question No. 3:
"If the sheriff fails to comply with his statutory duties, then what is my remedy as county judge/executive?"
While it is mandatory for the sheriff to attend fiscal court meetings and keep order, the sheriff must make a sound judgment as to whether or not he is viewing a disturbance or not, under the broad definitions given above when viewed against the actual scenario. If he has reason to believe that there is no disorder and that the fiscal court is merely engaged in parliamentary debate and discussion, there is no basis for his intervention.
Assuming that a disorder or disturbance of fiscal court arises, and you as county judge/executive request the sheriff or deputy to intervene and remove the offending person, and the sheriff fails or refuses to intervene, we know of no remedy that would suffice for that particular event. At the most, you would contend that he failed to perform a duty. In any event, you could entertain a motion to adjourn. Under KRS 70.990(2), if the sheriff violates any of the provisions of KRS 70.140, he may be summarily fined up to $20 by the court in which the offense is committed. However, that can only relate to a judicial court, not fiscal court. You could go to the commonwealth's attorney and charge the sheriff with wilful neglect of duty. See KRS 61.170. But if it later turns out that you had no reasonable grounds upon which to base your claim, and that you maliciously pursued the prosecution, you could be sued for malicious prosecution. Under Section 14 of the Kentucky Constitution, if a person maliciously and without probable cause initiates a criminal action against an innocent man, he is liable for the injury inflicted and the courts are open for the enforcement of the remedy, which is an action for damages.
Newton v. French, 227 Ky. 686, 13 S.W.2d 1016 (1929) 1017.
The major point in this whole matter is that you as county judge/executive must make certain that there is a legal "disturbance" of the fiscal court meeting before you call on the sheriff for help.