Request By:
Honorable Sandra M. Varellas
Fayette County Judge Executive
Suite 300, Court Plaza
266 West Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Urban County government is an innovative type of government approved by the Court of Appeals in Pinchback v. Stephens, Ky., 484 S.W.2d 327 (1972). However, it has left in its wake some residual problems relating to county officers.
Your question concerns KRS 402.050, which reads in part:
"(1) Marriage shall be solemnized only by:
(a) Ministers of the gospel or priests of any denomination in regular communion with any religious society;
(b) Judges of the circuit court, county judges/executive, judges of the district court and such justices of the peace as the governor or the county judge/exective authorizes; or"
The above statute provides that marriages may be solemnized by such justices of the peace as the governor or the county judge executive authorizes.
Your specific question is whether that power is vested in you as county judge executive or in the mayor of the Lexington-Fayette County Urban County government. There are three elected justices of the peace in Fayette County. Both Section 11.01 and 5.04 of the Charter of Urban County government contain no mention of KRS 402.050.
It is significant to note that in Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974), Judge Vance for the court observed at page 470 that the new form of government (urban county government) is neither a city government nor a county government as those forms presently exist but is an entirely new creature in which are combined all of the powers of a county government and all of the powers possessed by that class of cities to which the largest city in the county belongs." (Emphasis added). In short, it represents a "marriage" of county and city, second class, "powers of government". (Emphasis added). Basically, in enacting KRS 67A.010 to 67A.040, the legislature intended to exempt urban county government "from the operation of general laws relating to city government and county government except those general laws which confer powers upon city and county governments." (Emphasis added).
It can be seen that KRS 402.050, as to who may solemnize marriages, is not a general law relating to city or county government. It is merely a law dealing with the subject of those persons or officials who can perform marriages. In Ladd v. Commonwealth, 313 Ky. 754, 233 S.W.2d 517 (1950), Justice Knight wrote that the state does have the right to regulate the civil aspects of the marriage ceremony. Thus the marriage ceremony by one qualified by statute to solemnize the marriage does not relate to county or city governmental action, as such. The minister or justice of the peace who performs the ceremony is an officer of the state, and his performing it gives the marriage the status recognized by law. See Ladd v. Commonwealth, above. As was stated in Hensley v. Hensley, 286 Ky. 378, 151 S.W.2d 69 (1941) 70, "marriage, the most elementary and useful of them all (social relations) is regulated and controlled by the sovereign power of the state. . ."
Thus in answer to your question, the power to authorize your Fayette justices of the peace to solemnize marriages exists in the county judge executive, pursuant to KRS 402.050. There is no law that would permit the mayor of urban county government to exercise such authority. Of course where the governor has previously authorized one or more of the Fayette County justices of the peace to perform marriages, your authority would be nullified to that extent, since the statute does not envision the duplication of the authority to permit justices of the peace to solemnize marriages.
Your second question is whether such authority on your part would apply to the justices of the peace or the county commissioners elected in Fayette County.
The answer is that your authority to authorize a person to solemnize marriages applies exclusively to the justices of the peace in Fayette County, pursuant to KRS 402.050(1)(b). The statute in a way equates justices of the peace with county commissioners. The justice of the peace mentioned in KRS 402.050(1)(b) is mentioned specifically in §§ 99 and 142 of the Kentucky Constitution. County commissioners are specifically mentioned in § 144 of the Kentucky Constitution.
See KRS 67A.060, relating to the exercise of constitutional and statutory powers of counties and cities of the highest class within urban-county. Of course KRS 402.050(1)(b) is a non sequitur.