Request By:
Hon. Philip D. McKenzie
P.O. Box 635
Grayson, Kentucky 41143-0635
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Ross T. Carter, Assistant Attorney General
You have asked the validity of appointments of special bailiffs to serve summons and warrants when the sheriff's office is available to provide service.
Generally, service of process is governed by KRS 454.140, which states that every process in an action or proceeding shall be directed to the sheriff of the county. The appointment of special bailiffs is authorized by KRS 454.145, which states:
The court, for good cause, may appoint a person to serve a particular process or order, and he shall have the same power to execute it which a sheriff has. His return must be verified by his affidavit. He shall be entitled to the fees allowed to sheriffs for similar services.
Courts have not defined what constitutes good cause under this statute. In
McGaughey v. Continental Illinois National Bank and Trust Company of Chicago, Ky., 419 S.W.2d 139 (1967), the court approved the appointment of a special bailiff after the plaintiff's attorney filed an affidavit stating that the defendant had eluded service of process and that service would be impossible without the appointment. The court held that the defendant
is in no position to make a groundless attack on the discretion exercised by the trial court in appointing a special bailiff.
We are not inclined by the record here to criticize the judges of the Jefferson Circuit Court for appointing special bailiffs where in their good judgment cases may require same.
Id. at 140. Our opinions follow the court's holding that appointment of special bailiffs lies totally within the court's discretion. In OAG 72-538 at p. 3 we said that "the appointment of special bailiffs under KRS 454.145 is left to the good judgment of the circuit court in those pending cases requiring same." However, we have also said that KRS 454.140 "does not suggest the appointment of a person (which could be virtually anybody having no interest in the litigation) to serve process on a regular, continuing basis.' OAG 74-657 at p. 3.
We conclude that a court is authorized to appoint special bailiffs only when service by the sheriff would be impossible or ineffectual. Appointment of special bailiffs on an ongoing basis when the sheriff is available blatantly flouts the purpose of KRS 454.140. The statute is not intended to allow courts to employ process servers, nor to finance the operation of a county police force. However, appointment of specail bailiffs lies within the court's discretion. As the court stated in McGaughey , above, at 140: "If there is any abuse of the special bailiff statute, it can be tightened by legislative action."