Request By:
Mr. Al Buchanan
First District Constable
P.O. Box 936
Lexington, Kentucky 40588
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter raises two questions concerning the service of process by the constable and deputies in your county.
The specific questions read:
"Can a public business in the Commonwealth of Kentucky, in our jurisdiction, prevent the Constable and his legally sworn and bonded deputies from serving legal process upon that business' employees by refusing to permit said officers to enter the place of business? Legal process in this instance would involve summonses, subpoenaes, orders and rules from both civil and criminal divisions of district courts and circuit courts of this Commonwealth.
"We also need to be advised as to the appropriate KRS under which a subject may be charged because of obstructing service of process in this manner."
Pursuant to KRS 70.350, constables (including lawful deputies in a first or second class city) may execute warrants, summons, subpoenas, attachments, notices, rules and orders of court in all criminal, penal and civil cases in any part of the county. See § 101, Kentucky Constitution. The power of a sheriff or constable to serve process is wholly statutory. In view of KRS 70.350, the constable "must serve or execute all process delivered to him for that purpose, which appears on its face to have issued from competent authority, and with legal regularity, and the service or execution of which is within the lawful powers of his office." 80 C.J.S., Sheriffs and Constables, § 44, page 214.
Concerning service of summons, subpoenas, and orders, see CR 4.04, CR 5.02, 45.03, CR 45.05, and RCr 1.08.
At the outset, it should be kept in mind that a sheriff or other peace officer, such as a constable, is required in good faith to make a reasonable effort to execute the process. Ashby v. Gill, 14 B. Monroe 17 (1853). Under KRS 70.360, a constable cannot make a return of "not found" unless he has actually been to the defendant's residence. See KRS 70.180, relating to a sheriff or other officer breaking and entering for purpose of executing certain writs. KRS 70.360 does not prevent the lawful serving of process on a defendant located in a business place.
It is a well-established common law rule that an officer in serving civil process has no legal authority to forcibly enter a dwelling to execute the process. The rule relates to the protection of the home and family. 62 Am.Jur.2d, Process, § 58, pages 840-841. See also 72 C.J.S., Process, § 34, page 1043. In
Simms v. Reiner, U.S. Dist. Ct. N.D. Ill., 419 F.Supp. 468 (1976) 476, the court ruled that the officers had no right to make a forcible entry into the house to serve civil process, even after refusal of admittance.
The Supreme Court of Michigan, in Vanden Bogert v. May, 334 Mich. 606, 55 N.W.2d 115 (1952), pointed out that the protection of the dwelling against entry for service of civil process is in the outer door only. If the officer gains entry through the outer door without force or fraud, the privilege is gone, and he may force open any other door if necessary to make complete service of his process. In serving civil process, the officer must enter the defendant's premises peaceably for that purpose. See 62 Am.Jur.2d, Process, § 58 at page 840; 72 C.J.S. Process, § 34(d) at page 1043; and In Re Burroughs, 125 N.J.Super. 221, 310 A.2d 117 (1973) 118. See also 57 A.L.R. 210.
In your situation, the homes or buildings of defendants are not involved. KRS 70.079 provides that "It shall not be a sufficient return of any process, that the officer was prevented by force from executing it." In answer to your first question, it is our opinion that the constable or deputies holding legal process of the kinds mentioned above may in good faith use reasonable and necessary means to contact the named defendant employees in the place of business for service of process. Pursuant to KRS 70.079, reasonable and necessary force may be used to effectuate service. However, the courts would have to determine in each case whether or not the constable or deputy acted reasonably. This conclusion covers both civil and criminal process. It is written in 80 C.J.S., Sheriffs and Constables, § 44, page 216, that "A sheriff (this applies to constables) should execute every writ put in his hands in such a manner as to do as little mischief as possible, and where he acts wrongfully or causes unnecessary hardship the process affords him no protection, . . ., and he is liable for the resulting damages . . . ."
As relates to the second question, KRS 421.080 prohibits any person from leaving Kentucky or avoiding service of process by ant means whatever, so as to avoid being compelled to testify before any legislative committee or grand jury. The state prohibits any person from procuring the absence or nonavailability of a person sought to be served with process. KRS 421.990 provides that any person violating KRS 421.080 or who enters a conspiracy to violate KRS 421.080 shall be fined not less than $30 nor more than $500 or imprisoned for not less than 30 days or more than six (6) months or both. Thus where a business operator refuses to permit the constable or deputy to serve process peaceably upon one or more of his employees, he could be in violation of KRS 421.080, where the process is designed to compel the attendance of the witness before the grand jury or legislative committee.
KRS 432.280 enables a court to punish for contempt any person who resists any process of that court.