Request By:
Mr. Vernon Burton
Jessamine Circuit Clerk
Nicholasville, Kentucky 40356
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter concerns the serving of criminal process by the constable and the sheriff. The sheriff has indicated to you that he does not like the constable's serving most of such papers.
Specifically, your question reads:
"Who has the authority and responsibility to distribute the papers to be served between the sheriff and constable? Is this my job or does the sheriff, who is the chief law officer of the county, as you well know, receive all papers to be served and would he in turn be responsible to share with the constables? "
KRS 24A.140(1) requires the sheriff to provide the "same services to the district court as are provided to the circuit court." This would include serving all necessary criminal process and allied papers. KRS 70.070 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 . . . ." (Emphasis added). Since the process is issued by the court, KRS 70.070 means that the sheriff is required to execute criminal process coming out of the circuit and district courts and which process is placed in his hands by order or direction of the particular court.
The next question is whether or not the placing of criminal process in the hands of the sheriff by the courts is a matter of court discretion. As relates to civil process, KRS 454.140(1) requires that every process in a civil action be directed to the sheriff of the county; or if he be a party, or be interested, to the coroner; or, if he be interested, to the jailer, or, if all these officers be interested, to any constable.
Since we find no statute or rule comparable to KRS 454.140(1), as above mentioned, it is our opinion that the placing of criminal process and papers with the sheriff or other peace officer is a matter of discretion with the issuing court. Our view is buttressed by the fact that RCr 2.06 provides that the warrant of arrest and summons shall be directed to all peace officers in the Commonwealth. That form is obviously designed for the exercise of the issuing judge's discretion as to the officer who will execute the process. Thus under RCr 2.10, a warrant of arrest and a summons may be executed or served by any peace officer. See RCr 1.06, defining "judge" and "court", and SCR 5.030, relating to the authority of a trial commissioner to issue criminal process. See KRS 15.725(4), authorizing the circuit clerk, under certain circumstances, to issue criminal warrants, and KRS 30A.140. See KRS 15.200, giving the attorney general the authority to subpoena witnesses in criminal cases under certain circumstances. However the special cases of issuance of criminal process are under the aegis and authority of particular courts. In addition, note the flexibility of court (through the administrative office of the courts) selection of peace officers to assist the court (including service of process) in KRS 25A.140(4).
Under this analysis, the judge of the issuing court may direct to the clerk of the court the judge's desires as to precisely whom (the sheriff, constable, or other peace officer) the process will be delivered for execution and return.
Except where the judge of a court indicates a need for immediacy in serving a warrant, for example, the sheriff must exercise reasonable diligence in executing the process, bearing in mind his other duties, work schedule and convenience.
United States v. Payne, (U.S.C.A. -4, 1970) 423 F.2d 1125, 1126. In addition, where the sheriff's regular deputy staff is inadequate to meet the sheriff's total statutory responsibilities, the sheriff may, under KRS 70.050, in writing empower constables or other peace officers to execute criminal process, coming into the sheriff's hands, under the sheriff's supervision and direction. See the supporting KRS 70.060 and 70.070.
Constables are authorized to execute criminal process, pursuant to KRS 70.350. However, they can only execute such process where the process is placed in their hands, as explained above, by the the judge of the court, the court clerk, as directed by the judge, or the sheriff under an emergency.
It must be kept in mind that the power of a sheriff or constable to execute process, criminal or civil, is wholly statutory. Thus no power exists in them to serve process except as is expressly conferred or as may be fairly implied from the express provisions. 80 C.J.S., Sheriffs and Constables, § 44, page 214. However, the power to serve process is practically and legally derived from its being directed to such officer. Ibid., p. 215.