Request By:
Mr. Junie M. Tutterow
Branch Manager
County Fee Systems
Department of Local Government
1024 Capital Center Drive
Frankfort, Kentucky 40601
Opinion
Opinion By: Chris Gorman, Attorney General; Gerard R. Gerhard, Assistant Attorney General, (502) 564-7600
By letter of April 29, 1992, you ask, in substance, that this office advise whether the amendment of KRS 64.060, as provided in HB 15 (1992 Reg. Sess.), is constitutional. The amendment provides, in substance, that, if requested by the sheriff, and approved by the fiscal court of his county, the sheriff shall be paid from the state treasury, higher fees for certain services than would otherwise apply, and in some instances, receive a fee from the state treasury for services for which a fee is not otherwise provided in KRS 64.060.
We find no rational basis supporting the amendment of KRS 64.060, as provided by HB 15 (1992 Reg. Sess.), permitting a fiscal court to authorize payments to a sheriff from the state treasury , at higher rates for certain services than would apply without such approval, and to authorize fees, not otherwise provided for, for certain services. Such amendment could result in some sheriffs receiving, from the state treasury, lower statutorily provided fees for some services than are paid to other sheriffs, and no fees for some services for which other sheriffs are paid, based solely upon the action of the fiscal court of their county. A legislative enactment having no rational basis, that is related to the fees of sheriffs, since the fees of the office affect the livelihood, and thus the lives and property of sheriffs, is arbitrary, and violative of Section 2 of the Constitution of Kentucky. Additionally, we believe, HB 15, in establishing a unique procedure for the determination of the fees to be paid from the state treasury to certain sheriffs, is a special law where a general law could be made applicable, and is thus violative of Section 59, subdivision 29, of the Constitution of Kentucky. Further, we find that HB 15, in requiring a fiscal court's approval before an alternate statutory schedule of fees payable from the state treasury to a sheriff of a given county may take effect, is violative of Section 60 of the Constitution, as a law enacted to take effect upon approval of an authority other than the General Assembly. Discussion follows.
Prior to its amendment by HB 15 of the 1992 Regular Session of the General Assembly, KRS 64.060 provided:
(1) Sheriffs, constables, coroners, marshals and policemen shall be paid out of the state treasury for the following services the following fees:Apprehending a person on a charge offelony, or a fugitive from justicecharged with a felony in thisstate$ 3.00Executing a process of contempt in acriminal case when the court excusesthe contempt1.60Executing a summons upon a witness inbehalf of the Commonwealth in afelony case.75Summoning a jury, on order of a court,in a county other than that in whichthe action is pending, a reasonableallowance to be fixed by thecourt.Summoning and attending a jury in acase of felony2.50
(2) No claim for services incidental to examining courts shall be allowed to any sheriff, deputy sheriff, constable, marshal, policeman or other officer authorized to execute process in felony cases until the grand jury has returned an indictment for a felony.
HB 15 leaves the fee schedule set out above in place (except for identifying the provisions respectively as (a) through (e)), but amends KRS 64.060(2) to provide with respect to sheriffs, subject to a sheriff's request, and approval of the fiscal court of his county, for an exception from such schedule, as follows:(2) A sheriff shall, if he requests andreceives approval from the fiscal court ofhis county, be paid out of the StateTreasury for the following services thefollowing fees:(a) Apprehending a person oncharge of felony, or a fugitivefrom justice charged with a felonyin this state$ 10.00(b) Executing a summons upon awitness in behalf of the Common-wealth in a felony case3.00(c) Serving a domestic violenceemergency protective order3.00(d) Serving civil summons ina non support case10.00
It will be observed that, if requested by the sheriff, and approved by the fiscal court of his county , the fees payable from the state treasury for the sheriff , in apprehending a person for a felony, or a fugitive from justice charged with a felony in this state, will be $ 10.00, rather than the $ 3.00 that would be paid in the absence of fiscal court approval, and $ 3.00, instead of $ 0.75, for summoning a Commonwealth witness in a felony case. Further, subject to fiscal court approval following a sheriff's request, a sheriff would be allowed fees from the state treasury of $ 3.00 for serving a domestic violence emergency protective order, and $ 10.00 for serving a civil summons in a nonsupport case, services for which fees are not provided in KRS 64.060(1).
An evaluation of the constitutionality of a legislative enactment must begin with recognition of the principle that there is a presumption of constitutional validity of such enactments, with reasonable doubts being resolved in favor of constitutionality. Cf .,
Dalton v. State Property and Buildings Commission, Ky., 304 S.W.2d 342 (1957).
Section 2 of the Constitution of Kentucky provides:
Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.
In
Kentucky Milk Marketing v. Kroger Co., Ky., 691 S.W.2d 893, 899 (1985), the Kentucky Supreme Court observed:
Whatever is contrary to democratic ideals, customs and maxims is arbitrary. Likewise, whatever is essentially unjust and unequal or exceeds the reasonable and legitimate interests of the people is arbitrary.
That a county fiscal court shall determine amounts to be paid from the state treasury is contrary to the maxims of our democratic form of government. It surely is axiomatic that it is uniquely the responsibility of the General Assembly to fix with certainty, fees to be paid public fee officers from the state treasury, and not to delegate, without standards or guidelines, if at all, such authority to the various fiscal courts. An enactment which does delegate such authority to the fiscal courts, especially in the absence of standards or guidelines, is, we believe, arbitrary per se.
We cannot determine any rational basis for a legislative enactment that, on one hand, establishes specific fee amounts payable to certain peace officers from the state treasury, and on the other hand, allows a fiscal court to approve, for a sheriff, a dramatically higher rate to be paid from the state treasury than the legislature has itself authorized for certain services, as well as allowing a fiscal court to authorize payment from the state treasury, to a sheriff, of fees not allowed to other peace officers for specified services.
HB 15 establishes no standards or guidelines to assist a fiscal court in determining whether to authorize payment from the state treasury of a county sheriff, at rates higher than those generally provided, and payment for some services for which fees are not otherwise provided. Further, in having no direct responsibility for the state budget, the fiscal court would have no reasonable fiscal basis upon which to make such a determination. A sheriff in one county might receive higher fees than a sheriff in an adjoining county, based upon a virtually whimsical determination of the fiscal court. The fees of a fee officer obviously affect the livelihood and thus the life of such an officer. Legislation which would clearly permit, indeed perhaps ensure, inequality in the fees paid to like public officers, for the same duties, exceeds the reasonable and legitimate interests of the people, and is thus arbitrary, and violative of Section 2 of the Constitution of Kentucky. Cf ., Kentucky Milk Marketing, supra.
Additionally, we note that a general law can be made applicable to the fees to be paid from the state treasury to designated peace officers. Such a law was, in fact, in place prior to the amendment of KRS 64.060. HB 15, in establishing a special procedure for determination of fees to be paid from the state treasury to sheriffs, is, to the extent of such special procedure, a special law where a general law could be made applicable, and is thus violative of Section 59, subdivision 29, of the Constitution of Kentucky.
Yet further, Section 60 of the Constitution of Kentucky provides, in part, that no law, except one related to specifically listed subjects, or as expressly authorized in the Constitution (neither exception being applicable regarding the matter here involved), shall be enacted to take effect upon the approval of any other authority than the General Assembly. HB 15 is in direct contravention of such prohibition. It provides an alternate schedule of fees payable from the state treasury to the sheriff of a county, which is effective in a given county, only is such alternate fee schedule is approved by the fiscal court of a county whose sheriff has requested such approval. Stated another way, KRS 64.060(2) (HB 15, 1992 Reg. Sess.) takes effect in a given county, only upon the approval of a fiscal court - an authority other than the General Assembly. The effect and operation of what might be termed the "alternate fee schedule" for certain sheriffs, provided for by HB 15, depends not upon the discretion of the legislature, but upon the discretion of another (here the fiscal court). This is exactly the thing that is prohibited by section 60 of the Constitution. Cf .,
Young v. Willis, Ky., 203 S.W.2d 5 (1947), and,
Commonwealth v. Beaver Dam Coal, Ky., 237 S.W. 1086 (1922).
As opinions of the Attorney General (other than those related to review of denials of requests to inspect public records) do not have the force of law, your agency might want to seek a judicial determination regarding the constitutionality of HB 15.