Request By:
Hon. Doughlas M. George
Attorney at Law
200 Lincoln Park Road
Springfield, Kentucky 40069
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Asst. Deputy Attorney General
You are presently the Master Commissioner of the Washington Circuit Court. You ask whether or not any incompatibility would exist if you were appointed Trial Commissioner of Washington County as well.
A Master Commissioner is neither a state nor county officer. Shannon v. Ray, 280 Ky. 31, 132 S.W.2d 545 (1939). He is actually an agent or assistant of the Court which appoints him. A Trial Commissioner is a state officer. KRS 24A.100.
We find no statutory or constitutional incompatibility in the simultaneous holding of these two positions. Cf. KRS 61.080 and § 165 of the Kentucky Constitution.
Even where no statutory or constitutional incompatibility is involved, it is important to consider whether or not any common law or practical incompatibility would be involved with these two positions.
The case of Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) 126, lays down the fundamental criteria as to common law incompatibility:
"Offices are said to be incompatible and inconsistent so as to be executed by the same person: First. When, from the multiplicity of business in them, they cannot be executed with care and ability; or, second, when, their being subordinate and interfering with each other, it induces a presumption that they cannot be executed with impartiality and honesty."
In order to consider the application of the common law rule, we must look at the duties of the master commissioner and trial commissioner.
The master commissioner shall serve at the pleasure of the Circuit Court who appoints him. He shall perform such functions, including those of a receiver, as may be directed by the Court. The Supreme Court of Kentucky may make such rules, regulations, and accounting procedures as it may deem necessary for the appointment, conduct, and other matters relating to the master commissioner or receiver. See KRS 31A.010. See also part IV of the Rules of the Supreme Court of Kentucky, relating to fees of the master commissioner for each judicial sale; for reports and recommendations on tendered foreclosure judgments in uncontested cases for enforcement of a mortgage or other lien; for receiving and paying out money under Court order except pursuant to a judicial sale; and for any hearing.
Under § 113 of the Kentucky Constitution, in any county in which no District Judge resides, the Chief Judge of the district shall appoint a trial commissioner. Other trial commissioners may be appointed in any judicial district upon certification of the necessity therefor by the Supreme Court. All trial commissioners shall have power to perform such duties of the District Court as may be prescribed by the Supreme Court. Section 113, Kentucky Constitution. See also KRS 24A.100. The specific powers of the trial commissioner of the District Court are set forth in Rule 5.030 of the Supreme Court of Kentucky.
Subject to review by the Chief District Judge or by another judge designated for that purpose, the trial commissioner has the authority of a District Judge with respect to the following: (1) In criminal cases, to issue search warrants and warrants of arrest; to examine any charge and commit defendant to jail or bail; and to accept a plea of guilty and impose a sentence of fine up to $500. (2) In juvenile cases, to hear and determine whether children should be detained; to conduct preliminary inquiries; informally adjust juvenile cases, to order physical and mental examinations of children before the court; and issue orders for temporary custody of children. (3) In probate matters, to admit to record or reject any will offered for probate, to appoint executors and administrators of wills and estates and approve bond. (4) In civil proceedings, to authorize orders of attachment and garnishment and writs of possession, and to conduct judicial sales if so authorized by the Chief Judge of the district. (5) To issue writs of forcible entry and detainer and warrants of restitution. (6) To issue orders of involuntary hospitalization of mentally ill persons for periods not exceeding seven days. (7) To compel attendance of witnesses and production of evidence with respect to any proceeding before him.
From the above functions of each position, it would appear that one position would not be subordinate to the other, since the trial commissioner serves in District Court, and the master commissioner serves in the Circuit Court. The residual problem is whether you can perform both jobs in the manner expected of you under the law. That is a factual matter which you and the Circuit Judge and Chief District Judge must decide. You must have the Judges' approval for this double duty, of course.
If you think there is any ethical problem with it, you can consult the Ethics Committee of the Kentucky Bar Association. See Rule 3.530 of the Supreme Court.