Request By:
Mr. John T. Robertson
Christian County Clerk
Courthouse
511 S. Main
Hopkinsville, Kentucky 42240
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter presents questions relating to Kentucky's marriage law. It reads in part:
"In the event of a county clerk's deputy deliberately backdating a marriage application in order to avoid the three day waiting period, what is the liability of the clerk under KRS 402.990(8) if he takes no action against the deputy and mails the application to the Department of Human Resources with no explanation as to the circumstances surrounding such application.
"Also, would the liability of the elected county clerk be increased if this deputy is allowed to continue in his employment and this occurs again and both instances of falsification are exposed at that time."
The sine qua non in the marriage situation is the license. KRS 402.080 reads:
"(1) No marriage shall be solemnized without a license therefor. The license shall be issued by the clerk of the county in which the female resides at the time, unless the female is eighteen (18) years of age or over or a widow, and the license is issued on her application in person or by writing signed by her, in which case it may be issued by any county clerk.
"(2) No county clerk shall issue a marriage license except where both persons are sixty (60) years of age or older until the application for a marriage license remains on file, open to the public, in the office of the county clerk, for three (3) days before license is issued. The three-day waiting period shall be waived if both applicants are above the age of sixty (60) years."
The three-day waiting period is, under the literal language, mandatory. The marrying in haste and repenting at leisure can be very complex. While to many applicants the three days may seem an eternity, there is sound wisdom in the General Assembly's giving the marriage applicants a chance to think over what they are about to do. The three-day waiting period can only be waived if both applicants are above the age of sixty (60) years. The General Assembly's policy as to the three-day waiting period is luminously evident.
KRS 402.990(9) provides that any clerk who knowingly issues a marriage license in violation of his duty under KRS Chapter 402 (marriage law) shall be fined not more than one thousand dollars ($1,000). Under 402.990(10), if any deputy clerk knowingly issues a marriage license in violation of Chapter 402, such deputy clerk shall be fined not more than one thousand dollars ($1,000). The penalty statute clearly differentiates between issuing a marriage license to persons prohibited by Chapter 402 and issuing a license in violation of Chapter 402. In your situation the issuance is in violation of Chapter 402 (specifically KRS 402.080(2), three-day waiting period) .
The answer to question no. 1 is that where the deputy clerk issues the marriage license in violation of KRS 402.080(2), and where the county clerk has no actual knowledge of such wrongful issue until after the issuance has been effected, and the clerk has no reasonable opportunity to retrieve the wrongfully issued license prior to the solemnizing of marriage, the county clerk would not be subject to the penalty described in KRS 402.990(9). Subsection (8) would not apply in any event, since under the facts given the license was not issued to a person prohibited by Chapter 402. Cf. KRS 402.010 and 402.020. When you refer to sending the marriage application to the Cabinet for Human Resources, we assume you are referring to KRS 213.330 or 402.340, relating to sickle cell detection. KRS 213.330 requires the county clerk, at intervals specified therein, to furnish that Cabinet, from the marriage licenses issued and the marriage certificates returned to the clerk during the previous month, such information as may be required by the CHR upon forms prescribed and furnished by CHR.
Regardless of whether you are referring to the sickle cell detection program or the statistical function of CHR, we do not believe the clerk's failure to dismiss the deputy and to include with such marriage application record the fact of issuing the license prior to the three-day waiting period has any significance in terms of KRS 402.990(9). In most instances the license has been issued and the parties have been married.
In response to question no. 2, a repetition of this offense by the deputy would warrant the clerk's dismissal of the deputy, where the offense is made known to the clerk. Where the offense is allowed to be repeated, it could set the stage for charging the clerk under KRS 402.990(9). In Moores v. Fayette County, Ky., 418 S.W.2d 412 (1967), it was pointed out that the rule is that public officers are responsible only for their own misfeasance and negligence and are not responsible for the negligence of those who are employed by them if they have employed persons of suitable skill. Where the clerk has knowledge of a repeated violation of KRS 402.080(2), the clerk would have to dismiss that person, or else, upon the next violation suffer the penalty described in KRS 402.990(9). This was also written in Moores, above at page 414:
"The rule was recognized in Whitt v. Reed, Ky., 239 S.W.2d 489, 32 A.L.R.2d 1160, wherein public officers were held liable for their failure to exercise ordinary care in selecting subordinates who were known to them to be unsatisfactory to perform the task which they negligently performed, and in the execution of which it was reasonable to infer that disastrous consequences would result. In Spillman v. Beauchamp, Ky., 362 S.W.2d 33, 2 A.L.R.3d 814, it was pointed out that there must be 'some element of personal fault on the part of the officer or agent, such as negligence or deliberate wrongdoing.'"