Request By:
John B. Southard, Jr., Esq.
11709 Main Street
Middletown, Kentucky 40243
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson Assistant Attorney General
This is in reply to your letter raising a question relative to obtaining service on various persons for violations of punitive ordinances enacted by a city of the fourth class. The city forwarded the relevant paperwork to the Jefferson County Sheriff's Office for service but was advised that the sheriff's office would not serve the documents as that office serves only "legal papers." Your question is whether paperwork relating to the enforcement of municipal ordinances may be served by the sheriff.
The undersigned Assistant Attorney General contacted you by telephone on September 29, 1983 in an attempt to determine exactly what "paperwork" the city was attempting to have served by the sheriff. It seems that the city has some kind of a nuisance ordinance and when a problem is detected the city notifies the person to correct the problem or the city will make the necessary corrections, bill the person and put a lien on the property until the amount due is paid. Apparently these notices had formerly been sent by certified mail but because of problems concerning acceptance of the notices by property owners the city is now attempting to have these notices served by the sheriff's office.
KRS 70.070, dealing with the execution and return of process by the sheriff, provides in part that, "Each sheriff shall execute and make due return of all notices and process which come to him and may be lawfully executed by him against any person or property in his county, or upon any river or creek adjoining his county."
In OAG 78-403, copy enclosed, we said that KRS 70.070, dealing with service of process, means that the sheriff must serve in his county any process placed in his hands by the judge of any court.
In OAG 79-598, copy enclosed, a question was raised as to whether sheriffs may serve upon tenants, for landlords, notices to vacate when no legal action had been filed. We referred to the provisions of KRS 70.070 and said that there is no statutory authority for a sheriff to serve such notices. The sheriff must serve in his county any notice or process placed in his hands by the judge of any court.
The court, in Bonnie Braes Farms, Inc. v. Robinson, Ky. App., 598 S.W.2d 765, 766 (1980), said in part as follows:
". . . Judicial process may broadly be defined as all acts of the court, from the beginning of the proceeding to its end; a more narrow definition is the means of compelling a defendant to appear in court. 62 Am. Jur. 2d Process § 1. . . ."
In OAG 81-300, copy enclosed, in dealing with KRS 70.070 and the service of process by the sheriff, we referred to the case of Commonwealth v. Illinois Cent. R. Co., 160 Ky. 745, 170 S.W. 171 (1914) where judicial process was defined as follows:
"Judicial process is but the command of the sovereign by whose authority the tribunal out of which it issues was established, commanding the person or officer to whom it was directed, or who is authorized to execute it, to do certain acts therein specified, and it is therefore appropriate that such process shall run in the name of the government."
Thus, in the opinion of this office, a sheriff is not authorized to serve "notices" on behalf of a city when those "notices" do not constitute judicial process issued by a court of law in connection with legal proceedings undertaken by the city.
If your city is a member of the Kentucky Municipal League you may be able to obtain assistance in the preparation of an ordinance which would adequately address the problem of notice by contacting William A. Thielen, Esq., General Council, Kentucky Municipal League, P. O. Box 22736, Lexington, Kentucky 40522.
In connection with the serving of judicial process in cities and counties see OAG 81-300, KRS 24A.140 and KRS 431.420.