Request By:
Ms. Barbara B. Edelman
Director of Litigation
Lexington Fayette Urban
County Government
Department of Law
200 East Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter concerns whether the Lexington-Fayette Urban County Government must pay costs in civil actions to which it is a party.
Your specific questions read as follows:
"1. Is the Lexington-Fayette Urban County Government authorized but not required to pay costs in civil actions to which it is a party?
"2. Does the Lexington-Fayette Urban County Government have to advance fees as required by KRS 23A.200 and KRS 24A.170?
"3. In view of KRS 64.080 and 64.095, is the Lexington-Fayette Urban County Government exempt from paying the advance fee in the mileage allowance for service of process? "
Rule 54.04(1) of the Civil Rules provides:
"(1) Costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the Commonwealth, its officers and agencies shall be imposed only to the extent permitted by law. In the event of a partial judgment or a judgment in which neither party prevails entirely against the other, costs shall be borne as directed by the trial court."
KRS 453.010(1) provides in part that "No judgment for costs shall be rendered against the Commonwealth in any action prosecuted by or against the Commonwealth in its own right, unless specifically provided by statute;. . ."
However, it is our view that CR 54.04(1) and KRS 453.010 relate only to the state government, but not to a political subdivision, such as a county, or urban county government. Department of Revenue v. D & W Auto, Etc., Ky.App., 614 S.W.2d 542 (1981).
You mention the doctrine of sovereign immunity. However, that doctrine applies to the state and to counties strictly in connection with their immunity from tort liability. See Hempel v. Lexington-Fayette Urban County Government, Ky.App., 641 S.W.2d 51 (1982).
You mention KRS 64.080, exempting the state, counties and cities from payment of the advance fee for execution of process. You also cite KRS 64.095, exempting the Commonwealth from the payment of the mileage allowance for service of process, but which was repealed by Acts 1982, Ch. 159, § 6, effective July 15, 1982.
In answer to question no. 1, and where the urban county government would be the losing party, we know of no statute exempting that government from paying the costs in such civil action. Any exemption would have to be clearly stated by statute.
In answer to question no. 2, the advance fees required by KRS 23A.200 and KRS 24A.170 would have to be paid by the urban county government, since there is no exception that we can find.
As relates to question no. 3, the urban county government is still exempt from paying the advance fees for execution of process under KRS 64.080. As we said above, KRS 64.095 has been repealed. The serving of process of the sheriff is now covered in KRS 24A.170(5). There is no exemption on such fees, which must be paid by the party requesting the service of process, for urban county government.