Request By:
William K. Moore Jr., General Counsel, Cabinet for Families and Children
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Ross T. Carter, Assistant Attorney General
Opinion of the Attorney General
In Kentucky, either party in a paternity action may demand a jury trial. KRS 406.061. Certain federal funds are available only to states that do not allow jury trials in paternity actions. 42 USC § 666(a)(5)(I). We have been asked whether the General Assembly may remove the jury trial provision without denying a right guaranteed by the state constitution.
Section 7 of the Constitution of Kentucky says, "The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution." Our courts have construed this provision to mean that a litigant may demand a jury trial in any proceeding in which a right to a jury trial was recognized under the common law as it existed in 1791. Steelvest, Inc v Scansteel Service Center, Inc., Ky, 908 SW 2d 104, 107 (1995). The question therefore is whether in 1791 there was a common law right to a jury trial in paternity actions.
That precise question has been answered by the Court of Appeals. In Scantland v Commonwealth, 29 Ky (6 J J Marsh) 585 (1831), the court held unequivocally that "a jury is not necessary or proper in a case of [paternity] . It is now too late to debate the point."
We have examined other sections, including § 54, of the state constitution and find that they contain nothing that would affect the question before us.
Because there was no common law right to a jury trial in paternity actions, no such right is preserved in our state constitution. The General Assembly may repeal KRS 406.061 without offending any constitutional provision.