CHAPTER 421 Witnesses

421.010. Fees of witnesses generally. [Repealed.]

Compiler’s Notes.

This section (1734, 1736: Acts 1952, ch. 84, § 50; 1976 (Ex. Sess.), ch. 14, § 422, effective January 2, 1978) was repealed by Acts 1978, ch. 45, § 2, effective January 1, 1978.

421.015. Mileage allowance for witnesses in Circuit and District Courts.

A witness who resides in a county other than that to which he is subpoenaed shall be allowed the same amount allowed state employees under KRS 44.060 .

History. Enact. Acts 1978, ch. 45, § 1, effective January 1, 1978.

Opinions of Attorney General.

KRS 44.020 applies to this section which pertains to a mileage allowance for Kentucky witnesses in circuit and district courts. OAG 81-336 .

Subsection (2) of KRS 421.250 is impliedly repealed by this section as relates to the mileage factor. OAG 82-620 .

This section is broad enough to encompass nonresident, as well as resident, witnesses in felony cases as to the mileage factor where privately owned conveyance is used. OAG 82-620 .

Regarding mileage fee for nonresident witness in a felony case, this section, KRS 421.030 and 421.250(2) must be read together under the doctrine of in pari materia. Thus a nonresident witness, residing in a state which has adopted the Uniform Witness Act, and who is certified as a material witness for a Kentucky court felony case, is entitled to the mileage of 18 cents per mile where a privately owned vehicle is used or where the witness elects to travel by some other means, including air, except that the 18 cents per mile payment cannot exceed airplane coach fare; in addition, under KRS 421.250(2), such witness is entitled to the $5.00 per diem and under KRS 421.030 , such witness is entitled to reimbursement for reasonable lodging, food, tolls and taxi fares. OAG 82-620 .

Notwithstanding the ordinary level of reimbursement of travel expenses to be afforded nonresident material witnesses in felony cases, the Commonwealth must pay, as part of the necessary expenses of a witness, that amount required by the law of another state (one adopting the Uniform Witness Act) to be tendered in advance to a nonresident witness, as a prerequisite to issuance of its subpoena requiring a witness to travel to and give testimony in Kentucky. OAG 82-620 .

While this section refers narrowly to a mileage allowance for witnesses in court, under the doctrine of in pari materia, i.e., reading the related statutes together, witnesses who must travel to another county for appearance in circuit court would be entitled to the mileage allowance given state employees, and would be entitled to reimbursement for their necessary food and lodging costs as authorized in KRS 44.060 , 45.101 , 45.180 (repealed) and this section. OAG 83-117 .

Former employees of the Justice and Public Safety Cabinet, including the Office of the State Medical Examiner and of the Kentucky State Police Laboratory, are not entitled under Kentucky law to hourly compensation when subpoenaed to testify in a case arising from their duties while employed by the Commonwealth of Kentucky. OAG 2009-005 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Witnesses, § 55.00.

421.020. Fees allowed Commonwealth’s witnesses in felony cases. [Repealed.]

Compiler’s Notes.

This section (367: Acts 1964, ch. 177, § 2) was repealed by Acts 1978, ch. 45, § 2, effective January 1, 1978.

421.030. Nonresident witness — When expenses allowed.

A Commonwealth’s witness in a felony case who resides in another state shall be allowed his necessary expenses in addition to the per diem, but no such allowance shall be made unless the judge of the court has made an order based upon the personal knowledge of the Circuit Judge or upon information showing that the testimony of the witness is material to the state, requiring the attendance of the witness. The expense and per diem shall be allowed by the Circuit Court and certified to the circuit clerk for payment.

History. 368: amend. Acts 1942, ch. 163, §§ 1, 2; 1964, ch. 177, § 3.

Opinions of Attorney General.

KRS 44.020 applies to this section which relates to nonresident prosecutorial witness expenses in felony cases. OAG 81-336 .

Regarding mileage fee for a nonresident witness in a felony case, this section, KRS 421.015 and 421.250(2) must be read together under the doctrine of pari materia. Thus a nonresident witness, residing in a state which has adopted the Uniform Witness Act, and who is certified as a material witness for a Kentucky court felony case, is entitled to the mileage of 18 cents per mile where a privately owned vehicle is used, or where the witness elects to travel by some other means, including air, except that the 18 cents per mile payment cannot exceed airplane coach fare; in addition, under KRS 421.250(2), such witness is entitled to the $5.00 per diem and under this section, such witness is entitled to reimbursement for reasonable lodging, food, tolls and taxifares. OAG 82-620 .

Notwithstanding the ordinary level of reimbursement of travel expenses to be afforded nonresident material witnesses in felony cases, the Commonwealth must pay, as part of the necessary expenses of a witness, that amount required by the law of another state (one adopting the Uniform Witness Act) to be tendered in advance to a nonresident witness, as a prerequisite to issuance of its subpoena requiring a witness to travel to and give testimony in Kentucky. OAG 82-620 .

Former employees of the Justice and Public Safety Cabinet, including the Office of the State Medical Examiner and of the Kentucky State Police Laboratory, are not entitled under Kentucky law to hourly compensation when subpoenaed to testify in a case arising from their duties while employed by the Commonwealth of Kentucky. OAG 2009-005 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Certificate of Circuit Clerk that Witness has Attended on Felony Case, Form 55.05.

421.040. Fee in felony case must be claimed — When not allowed.

Each witness for the Commonwealth in a felony case shall, immediately after he testifies claim his attendance in open court. The claim may be allowed by the court and if it is allowed it shall be noted of record. Any person who has been subpoenaed or recognized as a witness in a felony case who fails to appear upon the calling of the case, is not entitled to claim as a witness in that case unless he files an affidavit from which it appears that he had a good excuse for failing to attend. When the affidavit is filed the court may allow the witness to claim his attendance. The clerk shall note on his order book the name of each witness who fails to attend the first day of the trial.

History. 1737, 1738.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Affidavit of Witness to Claim Attendance, Form 55.04.

Caldwell’s Kentucky Form Book, 5th Ed., Certificate of Circuit Clerk that Witness has Attended on Felony Case, Form 55.05.

421.045. Clerk to pay witnesses — State to provide funds — Clerk’s fee. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1964, ch. 177, § 1; 1974, ch. 74, Art. II, § 9(1)) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

421.050. State prosecutions in federal courts — Fees of witnesses and officers in.

In all criminal or penal actions that are removed from any court of this state to a federal court, the officers of the federal court and the witnesses who are subpoenaed and attend such court in behalf of the state are entitled to the same fees, per diem and mileage allowed under United States statutes to such officers and witnesses for similar services in similar cases when subpoenaed by and for the United States. Such fees, per diem and mileage shall be paid by the Finance and Administration Cabinet upon presentation of the certificate of the clerk of the federal court, approved by the judge thereof. The certificate shall show the amount due each officer and witness.

History. 1738a.

NOTES TO DECISIONS

1.Applicability.

Court rejected defendant’s argument that his opportunity to controvert the contents of a presentence investigation (PSI) report pursuant to KRS 532.050 applied to a victim impact statement pursuant to KRS 421.520 so as to afford him the opportunity to also controvert the contents of a victim impact statement because, unlike KRS 532.050 , KRS 421.520 did not specifically afford a defendant an opportunity to controvert the contents of a victim impact statement. Although KRS 421.520(1) permits a victim impact statement to be included in a PSI report or submitted by itself if a defendant waives the PSI report, nothing in either statute suggests that the rules governing challenges to PSI reports also apply to victim impact statements; absent such a provision or case law supporting such an application, the trial court did not err by declining to afford defendant such an opportunity. Phillips v. Commonwealth, 297 S.W.3d 593, 2009 Ky. App. LEXIS 179 (Ky. Ct. App. 2009).

421.060. Witness can only claim in one (1) case.

A witness attending several suits at the same time can only claim in one (1) case.

History. 1735.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Witnesses, § 55.00.

421.070. Liability for attachment and nonappearance.

When a witness is attached he shall pay the costs of the attachment, unless it appears from evidence he was not in fault. When a witness who has been duly subpoenaed fails without a good excuse, to appear on the trial, he shall pay all costs resulting from his failure.

History. 888.

NOTES TO DECISIONS

Cited in:

Flag Drilling Co. v. Erco, Inc., 156 S.W.3d 762, 2005 Ky. App. LEXIS 20 (Ky. Ct. App. 2005).

421.080. Evading process prohibited.

  1. No person shall leave this state or avoid service of process by any means whatever, so as to avoid being compelled to testify before any legislative committee or grand jury.
  2. No person shall procure the absence of a witness for the purpose set out in subsection (1).

History. 4866a-1, 4866a-2.

Opinions of Attorney General.

Where a business operator refuses to permit the constable or deputy to serve process peaceably upon one or more of his employees at his place of business, he could be in violation of this section, where the process is designed to compel the attendance of the witness before the grand jury or legislative committee. OAG 83-493 .

421.090. Disqualification because of conviction. [Repealed.]

Compiler’s Notes.

This section (1180) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

421.100. Newspaper, radio or television broadcasting station personnel need not disclose source of information.

No person shall be compelled to disclose in any legal proceeding or trial before any court, or before any grand or petit jury, or before the presiding officer of any tribunal, or his agent or agents, or before the General Assembly, or any committee thereof, or before any city or county legislative body, or any committee thereof, or elsewhere, the source of any information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected.

History. 1649d-1: amend. Acts 1952, ch. 121.

NOTES TO DECISIONS

1.Construction.

The language of the law granting immunity to a newsman from disclosing the source of any information procured or obtained by him grants a privilege from disclosing the source of the information but does not grant a privilege against disclosing the information itself. Branzburg v. Pound, 461 S.W.2d 345, 1970 Ky. LEXIS 614 ( Ky. 1970 ), aff'd, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626, 1972 U.S. LEXIS 132 (U.S. 1972).

This section is a statute in derogation of the common law. Branzburg v. Pound, 461 S.W.2d 345, 1970 Ky. LEXIS 614 ( Ky. 1970 ), aff'd, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626, 1972 U.S. LEXIS 132 (U.S. 1972).

2.Information.

Information as used in this section refers to the things or the matters which a reporter learns and source refers to the method by which or to the person from whom he learns them. Branzburg v. Pound, 461 S.W.2d 345, 1970 Ky. LEXIS 614 ( Ky. 1970 ), aff'd, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626, 1972 U.S. LEXIS 132 (U.S. 1972).

3.Observation of Criminal Act.

Where the reporter had observed his two informants in a criminal act, this section did not extend to him a privilege to refuse to answer the grand jury’s questions. Branzburg v. Pound, 461 S.W.2d 345, 1970 Ky. LEXIS 614 ( Ky. 1970 ), aff'd, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626, 1972 U.S. LEXIS 132 (U.S. 1972).

Newsman was afforded the privilege of refusing to divulge the identity of an informant who supplied him with information; however, this section does not permit a reporter to refuse to testify about events he has observed personally, including the identities of the persons he observed. Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626, 1972 U.S. LEXIS 132 (U.S. 1972).

4.Subpoena.

Where newspaper reporter sought the shelter of this section in his refusal to honor a subpoena to appear before a grand jury, he was unsuccessful because only the sources of information are protected by this section, and there is nothing which would allow refusal to obey a subpoena. Branzburg v. Meigs, 503 S.W.2d 748, 1971 Ky. LEXIS 50 ( Ky. 1971 ), aff'd, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626, 1972 U.S. LEXIS 132 (U.S. 1972).

5.Discovery.

In libel action against newspaper on grounds that it negligently and with reckless disregard for the truth published false and defamatory statements, trial court’s discovery order, which required reporters to furnish copies of their notes in lieu of the original notes, while permitting them to delete from such copies the portions that referred solely to matters other than the issues raised by the allegations of the complaint, and permitted a further hearing whenever there was doubt as to whether further material should or should not be deleted, was proper, even though newspaper asserted that privilege against disclosure existed by virtue of freedom of the press as guaranteed by the First Amendment to the United States Constitution, Ky. Const., § 8 and this section. Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 1984 Ky. LEXIS 281 ( Ky. 1984 ).

6.Waiver.

The statutory privilege against disclosure of the source of information in newspaper articles attributed directly to the former director of Kentucky’s Tobacco and Health Institute was waived by publication. Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 1984 Ky. LEXIS 281 ( Ky. 1984 ).

Research References and Practice Aids

Kentucky Law Journal.

Anderson, Branzburg v. Hayes: A Need for Statutory Protection of News Sources, 61 Ky. L.J. 551 (1973).

Waldrop, Torts, 74 Ky. L.J. 469 (1985-86).

Northern Kentucky Law Review.

Elliot, Kentucky’s Environmental Self-Audit Privilege: State Protection Or Increased Federal Scrutiny?, 23 N. Ky. L. Rev. 1 (1995).

Elder, Kentucky Defamation and Privacy Law — The Last Decade, 23 N. Ky. L. Rev. 231 (1996).

421.110. Punishment of witness for contempt.

Disobedience of a subpoena; intentional evasion of a service of it, by concealment, or otherwise; concealment or removal of a minor to prevent service of a subpoena upon him, or preventing his attendance as a witness, by a person having control of him; or a refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully ordered, may be punished as a contempt of the court or officer by whom the attendance or testimony of the witness is required.

History. C. C. 535: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1.Powers of Court.

Courts may go beyond the powers expressed or defined by the statutes in cases of civil contempt, and this certainly is so in relation to the exercise of powers not embraced within the expressed limitations. Crook v. Schumann, 292 Ky. 750 , 167 S.W.2d 836, 1942 Ky. LEXIS 150 ( Ky. 1942 ).

Where the existence or nonexistence of a contempt, civil or criminal, requires the resolution of a factual issue, the trial court may itself resolve that issue upon the basis of a hearing in which the alleged offender is afforded a fair opportunity to present a defense, but the trial court may not in such a case inflict a fine greater than $500 and incarceration for more than six months except upon the unanimous verdict of a jury finding the offender guilty beyond a reasonable doubt. Miller v. Vettiner, 481 S.W.2d 32, 1972 Ky. LEXIS 210 ( Ky. 1972 ).

While two witnesses subpoenaed by a husband to testify at a domestic violence order hearing did not appear, the Family Court, while it had the authority to find the witnesses in contempt under KRS 421.110 , properly did not do so in its discretion or issue a warrant for their arrest under KRS 421.130 as the witnesses’ proposed testimony regarding the wife’s past acts of aggression, mental history, and failure to take her prescribed medication was not relevant to the DVO hearing. Ruby v. Ruby, 2009 Ky. App. LEXIS 11 (Ky. Ct. App. Jan. 23, 2009).

2.Powers of Officers.

Official court reporters are authorized by this section to punish for contempt. Love v. Duncan, 256 S.W.2d 498, 1953 Ky. LEXIS 741 ( Ky. 1953 ).

3.Disobedience of Subpoena.

A subpoena duces tecum addressed to an agent or representative of a union, individually and in his capacity as international business representative of the union, was an order directed to the union as such which it was required to obey. International Union of Operating Engineers v. Bryan, 255 S.W.2d 471, 1953 Ky. LEXIS 650 ( Ky. 1953 ).

4.Refusal to Answer as Witness.

The criminal division of the Circuit Court was not deprived of jurisdiction to deal with contempt by a disobedient or recalcitrant witness within the age of the juvenile court’s jurisdiction for refusal to answer questions in a grand jury investigation before the Circuit Court to determine whether an indictment should be returned against her father for a homicide committed while the witness and her father were in an automobile with the person killed. Young v. Knight, 329 S.W.2d 195, 1959 Ky. LEXIS 149 ( Ky. 1959 ).

Where the defendant refused two (2) orders of the court to be sworn and testify in the same case on occasions separated by less than two (2) hours, there was one continuing contempt on the part of the defendant rather than a separate contempt for each refusal. Woods v. Commonwealth, 712 S.W.2d 363, 1986 Ky. App. LEXIS 1144 (Ky. Ct. App. 1986).

5.Attorneys.

An attorney’s obligation of loyalty and duty to his client does not extend so far as to justify advising a continuing course of defiance and contumacious disobedience of court orders, and when an attorney aids in the evasion of an order of the court, or incites others to such conduct, he is equally, if not more, guilty of contempt of court than is his client. Crook v. Schumann, 292 Ky. 750 , 167 S.W.2d 836, 1942 Ky. LEXIS 150 ( Ky. 1942 ).

6.Perjury.

Although contempt proceedings do not lie for perjury except where the truth of the facts or the falsity of the evidence is judicially known, the trial court has to find defendant’s testimony false in order to inflict punishment for a contempt that is dependent on the premise that the party allegedly in contempt is not telling the truth. Miller v. Vettiner, 481 S.W.2d 32, 1972 Ky. LEXIS 210 ( Ky. 1972 ).

Cited in:

Hall v. Commonwealth, 765 S.W.2d 583, 1988 Ky. App. LEXIS 203 (Ky. Ct. App. 1988).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Contempt, § 22.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Witnesses, § 55.00.

Caldwell’s Kentucky Form Book, 5th Ed., Warrant of Arrest Against Witnesses for Contempt, Form 22.06.

Caldwell’s Kentucky Form Book, 5th Ed., Warrant of Arrest of Witness for Disobeying Subpoena, Form 54.10.

421.120. Liability of disobedient witness for costs and damages.

When a witness is brought before a court for contempt by disobedience of a subpoena, and it is shown that the legal fees for travel and one (1) day’s attendance were paid or tendered to him when the subpoena was served, and that he failed to attend without reasonable cause, the court may summarily order him to pay the party, on whose behalf he was summoned, the costs occasioned to him by the disobedience of the subpoena, not exceeding twenty dollars ($20); and he shall also be liable for any damages occasioned by the failure to attend.

History. C. C. 536: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1.Application.

Failure to tender legal fees and mileage as provided by this section in advance does not excuse compliance with a subpoena. International Union of Operating Engineers v. Bryan, 255 S.W.2d 471, 1953 Ky. LEXIS 650 ( Ky. 1953 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Witnesses, § 55.00.

421.130. Warrant of arrest of disobedient witness — Bond.

If a witness fail to attend in obedience to a subpoena, the court or officer before whom his attendance was required may issue a warrant for arresting and bringing him before the court or officer, at a time and place to be fixed in the warrant, to give his testimony, and answer for the contempt. If the warrant be not for immediately bringing the witness before the court or officer, a sum shall be fixed in which the witness may give bond, with surety, for his appearance; and if no sum be fixed by the court or officer, it shall be one hundred dollars ($100).

History. C. C. 537: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1.Powers of Officers.

This section authorizes official reporters to issue a warrant of arrest for a witness who fails to attend the taking of a deposition in obedience to a subpoena. Love v. Duncan, 256 S.W.2d 498, 1953 Ky. LEXIS 741 ( Ky. 1953 ).

2.Unlawful Arrest.

The court’s contempt order was not nullified because of the unlawful arrest of the defendant on a bench warrant for his failure to appear. Payne v. Commonwealth, 724 S.W.2d 230, 1986 Ky. App. LEXIS 1512 (Ky. Ct. App. 1986).

3.Discretion of Court.

While two (2) witnesses subpoenaed by a husband to testify at a domestic violence order hearing did not appear, the Family Court, while it had the authority to find the witnesses in contempt under KRS 421.110 , properly did not do so in its discretion or issue a warrant for their arrest under KRS 421.130 as the witnesses’ proposed testimony regarding the wife’s past acts of aggression, mental history, and failure to take her prescribed medication was not relevant to the DVO hearing. Ruby v. Ruby, 2009 Ky. App. LEXIS 11 (Ky. Ct. App. Jan. 23, 2009).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Witnesses, § 55.00.

421.135. Special bailiff to compel attendance of witness in felony case.

When a felony case has been called, and either party is not ready for trial because a witness who has been duly subpoenaed and has failed to appear is not in the county in which the court is sitting, the Circuit Judge may appoint a special bailiff, who shall have power to arrest and bring the witness immediately before the court. The bailiff shall be allowed by the judge a reasonable compensation for the service, not to exceed that allowed to sheriffs for conveying prisoners to the penitentiary.

History. 1142: amend. Acts 1962, ch. 234, § 62.

Compiler’s Notes.

This section was formerly compiled as KRS 455.100 .

NOTES TO DECISIONS

1.Continuance to Enforce Attendance of Witnesses.

Where accused had his alibi witnesses summoned and for some reason they were absent on the day of trial, the trial should have been postponed to a later day in the term to afford the accused an opportunity to procure their attendance, or the court to coerce it. Wilcher v. Commonwealth, 297 Ky. 36 , 178 S.W.2d 949, 1944 Ky. LEXIS 661 ( Ky. 1944 ).

2.Compensation of Special Bailiff.

Upon a proper showing, a special bailiff is entitled to an allowance to be fixed by the circuit judge not to exceed the rates prescribed by KRS 64.070 . Mann v. Commonwealth, 102 Ky. 383 , 43 S.W. 694, 19 Ky. L. Rptr. 1437 , 1897 Ky. LEXIS 128 ( Ky. 1897 ).

Opinions of Attorney General.

Special bailiff compensation, which is dealt with in this section, involves a “felony case” and thus KRS 44.020 applies. OAG 81-336 .

Research References and Practice Aids

Cross-References.

Arrest, Ky. Const., § 10.

Circuit judge, KRS ch. 23A.

Compensation for conveying felon to penitentiary, KRS 64.070 , 441.540 .

Felony, KRS 431.060 .

421.140. Refusal of witness to testify — Imprisonment.

If a witness refuses to testify, or to be sworn, or to give a deposition, he shall be imprisoned so long as he refuses, or until he testifies before an officer who is authorized to take his testimony. The final disposition of the case in which he so refuses shall discharge him from imprisonment.

History. C.C. 538: trans. Acts 1952, ch. 84, § 1; 1976 (Ex. Sess.), ch. 14, § 423, effective January 2, 1978.

Compiler’s Notes.

This section was declared unconstitutional in Woods v. Commonwealth, 712 S.W.2d 363 (Ky. Ct. App. 1986).

NOTES TO DECISIONS

1.Constitutionality.

The limits prescribed by this section materially interfere with the administration of justice and are therefore unconstitutional. Arnett v. Meade, 462 S.W.2d 940, 1971 Ky. LEXIS 569 ( Ky. 1971 ) (decision prior to 1976 amendment).

This section is unconstitutional in that it binds the hands of the trial court by restricting the duration of imprisonment to the pendency of the trial; witnesses cannot be allowed to freely refuse requests of the court with the certainty that their penalty will be of limited duration. Woods v. Commonwealth, 712 S.W.2d 363, 1986 Ky. App. LEXIS 1144 (Ky. Ct. App. 1986).

2.Purpose.

The justification for coercive punishment such as imprisonment rests upon the inherent power of the courts to punish contempt; it is essential that courts be able to compel the appearance and testimony of witnesses. Hardin v. Summitt, 627 S.W.2d 580, 1982 Ky. LEXIS 228 ( Ky. 1982 ).

3.Vacation or Modification of Order of Officer.

The only limitation on official reporters’ rights to issue subpoenas and warrants of arrest without control or discretion of the judge is the power of the court under this section to vacate or modify any punishment for contempt. Love v. Duncan, 256 S.W.2d 498, 1953 Ky. LEXIS 741 ( Ky. 1953 ).

4.Foreign Notary.

A notary public authorized by a commission from the court of another state to take depositions in this state for use in an action pending in such court is without authority to issue a subpoena duces tecum compelling a witness to produce before such notary books or documents for inspection or as evidence, and being without such authority, his action declaring such witness in contempt for refusing to produce the books or documents, and attempting to punish him therefor, was illegal and void; nor can such action of the notary be given any legal force or effect by any order that may be entered by the judge of the county court in approval thereof. E. H. Taylor, Jr., & Sons v. Thornton, 178 Ky. 463 , 199 S.W. 40, 1917 Ky. LEXIS 759 ( Ky. 1917 ).

5.Appeal.

The Court of Appeals had jurisdiction to consider the appeal from two (2) judgments for civil contempt because of disobedience of orders intended to preserve and to enforce adjudged rights of private parties to suits even though the fines were $25.00 only. Crook v. Schumann, 292 Ky. 750 , 167 S.W.2d 836, 1942 Ky. LEXIS 150 ( Ky. 1942 ).

6.Exclusive Punishment.

This section is intended to be exclusive on the subject of punishment of a witness for contempt in refusing to answer a question, and forecloses the application of the general laws dealing with punishment for contempt. Arnett v. Meade, 462 S.W.2d 940, 1971 Ky. LEXIS 569 ( Ky. 1971 ).

7.Discretion of Court.

The extent of punishment to be imposed upon a recalcitrant witness is a matter within the reasonable discretion of the trial court, which discretion is reviewable by the Court of Appeals. Arnett v. Meade, 462 S.W.2d 940, 1971 Ky. LEXIS 569 ( Ky. 1971 ).

8.Determination of Contempt.

Where the existence or nonexistence of a contempt, civil or criminal, requires the resolution of a factual issue, the trial court may itself resolve that issue upon the basis of a hearing in which the alleged offender is afforded a fair opportunity to present a defense, but trial court may not in such a case inflict a fine greater than $500 and incarceration for more than six (6) months except upon the unanimous verdict of a jury finding the offender guilty beyond a reasonable doubt. Miller v. Vettiner, 481 S.W.2d 32, 1972 Ky. LEXIS 210 ( Ky. 1972 ) (decision prior to 1976 amendment).

9.Perjury.

Although contempt proceedings do not lie for perjury except where the truth of the facts or the falsity of the evidence is judicially known, the trial court has to find defendant’s testimony false in order to inflict punishment for a contempt that is dependent on the premise that the party allegedly in contempt is not telling the truth. Miller v. Vettiner, 481 S.W.2d 32, 1972 Ky. LEXIS 210 ( Ky. 1972 ).

10.Final Disposition.

Since the order imposing conditional imprisonment was obviously for the purpose of compelling the contemnor to testify in the felony prosecution of two defendants, the rendition of a guilty verdict against the two (2) defendants and the discharge of the jury constituted a final disposition of the prosecution so as to discharge the contemnor from his imprisonment for contempt. Hardin v. Summitt, 627 S.W.2d 580, 1982 Ky. LEXIS 228 ( Ky. 1982 ).

The justification for imprisonment under this section depends upon the ability of the contemnor to comply with the court’s order and it is untenable to suggest that the term “final disposition” as used in this section requires a contemnor to remain incarcerated during the pendency of an appellate process which may continue for several years. Hardin v. Summitt, 627 S.W.2d 580, 1982 Ky. LEXIS 228 ( Ky. 1982 ).

Cited in:

Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

Research References and Practice Aids

Cross-References.

Punishment for contempt, KRS 432.230 .

Kentucky Law Journal.

Kentucky Law Survey, Leathers, Civil Procedure, 71 Ky. L.J. 395 (1982-83).

Note, Judicial v. Legislative Power in Kentucky: A “Comity” of Errors, 71 Ky. L.J. 829 (1982-83).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Witnesses, § 55.00.

421.150. Form of warrant of commitment or arrest.

Every warrant of commitment to prison issued by a court or officer, pursuant to KRS 421.110 to 421.180 , must specify particularly the cause of the commitment; and, if it be for refusing to answer a question, such question must be stated in the warrant. And every warrant to arrest or commit a witness must be directed to the sheriff of the county where he may be, and be executed in the same manner as process from the court.

History. C. C. 539: trans. Acts 1952, ch. 84, § 1.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Warrant of Arrest Against Witnesses for Contempt, Form 22.06.

Caldwell’s Kentucky Form Book, 5th Ed., Warrant of Arrest of Witness for Disobeying Subpoena, Form 54.10.

421.160. Oral examination of prisoners — Depositions. [Repealed.]

Compiler’s Notes.

This section (C.C. 540: trans. Acts 1952, ch. 84, § 1) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence.

421.170. Control of prisoners during taking of deposition. [Repealed.]

Compiler’s Notes.

This section (C.C. 541: trans. Acts 1952, ch. 84, § 1) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence.

421.180. Immunity of witness from suit.

A witness shall not be liable to be sued in a county in which he does not reside, by being served with a summons in such county while going, returning or attending, in obedience to a subpoena.

History. C. C. 542: trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1.Resident Witnesses.

A resident of this state may be sued in a county other than the county of his residence, although he is there as a witness, if the venue of the action in which the process was served is in that county. But a witness who is in attendance in a county other than the county of his residence that has not the venue of the action cannot be sued in that county while attending as a witness. Rains v. Smith, 155 Ky. 766 , 160 S.W. 493, 1913 Ky. LEXIS 346 ( Ky. 1913 ).

Provisions of this section only refer to residents of this state. Rains v. Smith, 155 Ky. 766 , 160 S.W. 493, 1913 Ky. LEXIS 346 ( Ky. 1913 ).

2.Statute Inapplicable.
3.—Nonresident Witnesses.

Regardless of this section, a nonresident witness is exempt from the service of civil process in this state while in attendance upon court as a witness, and this privilege attends him not only when coming to, returning from, and attending upon the court but also for a reasonable time after the hearing to prepare for a departure. Rains v. Smith, 155 Ky. 766 , 160 S.W. 493, 1913 Ky. LEXIS 346 ( Ky. 1913 ).

4.—Voluntary Attendance.

Where, in an action instituted in Henry Circuit Court to recover damages against the defendant corporation for violation of contract in which summons was served upon chief officer of the corporation who was in Henry County voluntarily attending court as a witness, and the lower court overruled a motion to quash the service of summons and case was tried upon the merits, in urging a reversal of the judgment, the defendant contended the court erred in overruling its motion to quash the service of summons, the appellate court in affirming the decision of the lower court stated the statute is not applicable and does not prevent service of summons in an action against a corporation on an officer of the corporation voluntarily attending court as a witness. Currie Fertilizer Co. v. Krish, 74 S.W. 268, 24 Ky. L. Rptr. 2471 , 1903 Ky. LEXIS 305 (Ky. Ct. App. 1903).

Where, in an action seeking to prohibit a trial court from proceeding with the trial of an action instituted against daughter by her father’s creditor in which it was alleged that she had received more than the amount of the creditor’s claim from her father’s estate, the service of summons was had upon her while she was temporarily in the state to testify in an appeal which she had taken from the judgment probating her father’s will and she had voluntarily returned to the state and was voluntarily attending a trial, the service of process upon her was valid. Lewis v. Miller, 115 Ky. 623 , 74 S.W. 691, 24 Ky. L. Rptr. 2533 , 1903 Ky. LEXIS 141 ( Ky. 1903 ).

5.—Nonresident Defendants.

As a matter of public policy, a nonresident of state is exempt from the service of civil process while he is attending court in Kentucky as a defendant in a criminal action in compliance with the conditions of a bail bond. Cummins' Adm'r v. Scherer, 231 Ky. 518 , 21 S.W.2d 836, 1929 Ky. LEXIS 317 ( Ky. 1929 ).

6.—Service of Notice of Appeal.

Where, in an action in which the plaintiff recovered judgment against the defendant, which judgment defendant appealed, and prior to service of process on appeal plaintiff died and process was served upon the administratrix while she was in the county attending court under subpoena as a witness for the Commonwealth in a murder trial, on motion to quash process in appellate court, court held that the statute providing that a witness shall not be liable to be sued in a county in which he does not reside by being served with a summons in such county while going, returning, or attending in obedience to a subpoena refers only to the venue and has no application as to service of notice of appeal to the Court of Appeals. Linn v. Hagan's Adm'x, 121 Ky. 627 , 87 S.W. 1101, 27 Ky. L. Rptr. 1113 , 1905 Ky. LEXIS 169 ( Ky. 1905 ).

7.Federal Court.

A plaintiff in a case in federal court is immune from service of process in a state court action while attending trial of his case in federal court in Kentucky. Marlowe v. Baird, 301 F.2d 169, 1962 U.S. App. LEXIS 5406 (6th Cir. Ky. 1962 ).

Research References and Practice Aids

Cross-References.

Process, privilege of exemption from service of, when, KRS 454.130 .

Summons, privilege of defendant from, KRS 452.495 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer Showing that Court has no Jurisdiction of the Defendant, Form 39.07.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Witnesses, § 55.00.

Caldwell’s Kentucky Form Book, 5th Ed., Warrant of Arrest of Witness for Disobeying Subpoena, Form 54.10.

421.190. Person present may be compelled to testify.

A person present before a court or before a judicial officer may be compelled to testify in the same manner as if he were served with a subpoena.

History. C. C. 602: trans. Acts 1952, ch. 84, § 1.

421.200. Competency of witnesses generally. [Repealed.]

Compiler’s Notes.

This section (C.C. 605: amend. Acts 1952, ch. 84, § 1) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rule 601.

421.210. Person not to testify in his own behalf — Exceptions. [Repealed.]

Compiler’s Notes.

This section (C.C. 606: amend. Acts 1898, ch. 1, §§ 1 to 9; 1912, ch. 104; 1926, ch. 29; 1930, ch. 21; 1932, ch. 59; 1940, ch. 95; trans. Acts 1952, ch. 84, § 1; 1976, ch. 358, § 1; 1980, ch. 188, § 289, effective July 15, 1980; 1980, ch. 312, § 2, effective July 15, 1980; 1990, ch. 88, § 77) was repealed by Acts 1992, ch. 324, § 30, effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 501 to 511.

421.215. Psychiatrist-patient privilege — Limitations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 121, §§ 1 to 3) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 501 to 511.

421.2151. Privileged communication between sexual assault counselor and victim. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 152, § 1, effective July 15, 1986) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rule 506.

421.216. School counselor-student counselee communications — Immunity from disclosure. [Repealed.]

Compiler’s Notes.

This section (Enact Acts 1974, ch. 82, § 1) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rule 506.

421.220. Other objections to witnesses go to credit. [Repealed.]

Compiler’s Notes.

This section (C.C. 607: trans. Acts 1952, ch. 84, § 1) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 607, 608, and 609.

421.225. Testimony of defendant.

In any criminal or penal prosecution the defendant, on his own request, shall be allowed to testify in his own behalf, but his failure to do so shall not be commented upon or create any presumption against him.

History. 1645, 1646: amend. Acts 1974, ch. 1, § 1.

Compiler’s Notes.

This section was formerly compiled as KRS 455.090 .

NOTES TO DECISIONS

1.Prosecution.
2.—Comments.

In prosecution for having liquor for sale in local option territory, comment by prosecutor that defendant had not taken stand and explained to what institutions the liquor was to be furnished violated this section and required reversal of the judgment. Hicks v. Commonwealth, 311 Ky. 492 , 224 S.W.2d 916, 1949 Ky. LEXIS 1198 ( Ky. 1949 ).

In a prosecution as a habitual criminal, comment by the Commonwealth’s Attorney that no witness had taken the stand to deny the identity of the defendant as the same person who had been previously convicted did not violate this section. Foster v. Commonwealth, 415 S.W.2d 373, 1966 Ky. LEXIS 7 ( Ky. 1966 ), cert. denied, 388 U.S. 914, 87 S. Ct. 2128, 18 L. Ed. 2d 1355, 1967 U.S. LEXIS 1175 (U.S. 1967).

Remark by prosecutor that evidence for the state was uncontradicted was not improper as drawing attention to the failure of defendant to testify. Fanelli v. Commonwealth, 418 S.W.2d 740, 1967 Ky. LEXIS 229 ( Ky. 1967 ).

Though in summation to the jury the prosecutor at one point commented on defendant’s failure to testify, the other evidence was so overwhelming that any constitutional violation of the privilege against self-incrimination was not prejudicial. Caldwell v. Commonwealth, 503 S.W.2d 485, 1972 Ky. LEXIS 3 ( Ky. 1972 ).

Argument that a defendant has failed to contradict the prosecutor’s evidence has been upheld as a proper form of argument; accordingly, comments by a prosecutor which did not directly refer to the defendant’s failure to testify, but only referred to the fact that the defense did not put on any witnesses at all, were a proper form of argument. Haynes v. Commonwealth, 657 S.W.2d 948, 1983 Ky. LEXIS 283 ( Ky. 1983 ).

Comment on the failure to testify must be manifestly intended to reflect on the accused’s silence or of such a character that the jury would naturally and necessarily take it as such, to constitute prejudice. Bagby v. Sowders, 894 F.2d 792, 1990 U.S. App. LEXIS 484 (6th Cir. Ky.), cert. denied, 496 U.S. 929, 110 S. Ct. 2626, 110 L. Ed. 2d 646, 1990 U.S. LEXIS 3101 (U.S. 1990).

Where there was no indication of an extraordinary case in which a constitutional violation had probably resulted in the conviction of one who is actually innocent, the petitioner’s argument that the prosecutor’s comment during closing argument violated his privilege against self-incrimination was barred by procedural default, in the absence of a contemporaneous objection. Bagby v. Sowders, 894 F.2d 792, 1990 U.S. App. LEXIS 484 (6th Cir. Ky.), cert. denied, 496 U.S. 929, 110 S. Ct. 2626, 110 L. Ed. 2d 646, 1990 U.S. LEXIS 3101 (U.S. 1990).

Murder conviction was reversed based on a prosecutor’s comment on defendant’s failure to tell police where a shot was fired from because the reference was clearly to the failure to testify at trial since such a question was not asked during police interrogation; the record showed that the proof of defendant’s guilt was not overwhelming, defense counsel objected, and the trial court failed to cure the error. Ragland v. Commonwealth, 2004 Ky. LEXIS 284 (Ky. Nov. 18, 2004).

3.Testimony.
4.—Codefendants.

Where criminal defendant declined to request separate trial, incriminating testimony of codefendants was competent. Johnson v. Commonwealth, 403 S.W.2d 36, 1966 Ky. LEXIS 322 ( Ky. 1966 ).

Because a codefendant’s attorney may not comment on the accused’s failure to testify, the possibility of such comment does not constitute a ground for separate trial. Luttrell v. Commonwealth, 554 S.W.2d 75, 1977 Ky. LEXIS 482 ( Ky. 1977 ).

5.—Order.

Where accused at close of the case for Commonwealth requested the court for permission to testify after all other defense witnesses had testified, court’s ruling that if he desired to testify his testimony would have to be given first did not violate the constitutional right of defendant either in forcing or depriving him of his right to remain silent. Robinson v. Commonwealth, 474 S.W.2d 107, 1971 Ky. LEXIS 94 ( Ky. 1971 ) (decision prior to 1974 amendment).

6.—Option of Defendant.

This section makes it optional with the defendant whether he testifies or not, and he is entitled to an instruction on his failure to testify only if he requests it. Spencer v. Commonwealth, 467 S.W.2d 128, 1971 Ky. LEXIS 354 ( Ky. 1971 ).

Denial of defendant’s right to testify at her trial for lighting herself and her children on fire, resulting in the death of one of the children, was reversible error where defendant was competent to stand trial, where the right was fundamental, personal, and was not waived by her, and where she was prejudiced by the denial of that right because the trial court was forced to gag her and forcibly drag her form the courtroom in the presence of the jury because defendant was disruptive in trying to assert her right to testify. Even though the collective efforts of the trial court, prosecutors and defendant’s own attorneys was to prevent defendant from harming herself by taking the stand and attempting to commit suicide by insuring she would receive the death penalty, the trial court still had to grant defendant the right to tell her story in her own words. Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ).

7.Comments by Court.

Where trial judge refused a defendant’s request to instruct the jury that defendant was not compelled to testify, that the fact that he did not testify could not be used as an inference of guilt, and that failure to testify should not prejudice him in any way, such refusal violated defendant’s privilege against self-incrimination under the Fifth Amendment of the United States Constitution as applied to the states by the Fourteenth Amendment of the United States Constitution, since the trial judge has a constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant’s failure to testify, and granting the requested jury instruction would not have required the trial judge to “comment upon” the defendant’s failure to testify as prohibited by this section. Carter v. Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d 241, 1981 U.S. LEXIS 77 (U.S. 1981).

Where the defendant requested the trial court to instruct the jury that no inference of guilt should be drawn from defendant’s failure to testify, the trial court was justified in refusing to give the instruction because the giving of the instruction would be a direct “comment” within the meaning of this section and would have emphasized the fact that the accused had not testified in his own behalf. Green v. Commonwealth, 488 S.W.2d 339, 1972 Ky. LEXIS 39 ( Ky. 1972 ).

8.Testimony of Defendant.

The former section providing that a defendant could not testify after any other defense witness, as applied to a case in which none of the other witnesses offered any testimony helpful to the defense, was not unconstitutional. Burch v. Commonwealth, 555 S.W.2d 954, 1977 Ky. LEXIS 517 ( Ky. 1977 ) (decided under prior law).

Although a trial court incorrectly informed defendant that, if he testified in his rape prosecution differently from what he told his attorney during the trial with respect to the issue of force and penetration, he could be prosecuted for perjury, defendant was not deprived of his right to testify on his own behalf as the error was harmless, in that it was highly improbable under the circumstances of the case that competent defense counsel would have advised his client to testify and highly improbable that a well-advised defendant would have elected to present defendant’s testimony. Moreover, there was no claim that defendant was dissuaded from taking the stand because of the judge’s comments. Woolfolk v. Commonwealth, 339 S.W.3d 411, 2011 Ky. LEXIS 64 ( Ky. 2011 ).

Research References and Practice Aids

Cross-References.

Evidence, KRS ch. 422.

Right against self-incrimination, Ky. Const., § 11.

Witnesses, KRS ch. 421.

Kentucky Law Journal.

Gormley and Hartman, The Kentucky Bill of Rights: A Bicentennial Celebration, 80 Ky. L.J. 1 (1990-91).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Miscellaneous Guilt Phase Instructions, §§ 2.04A, 2.04B.

421.230. Definitions for KRS 421.230 to 421.270.

  1. The word “witness” as used in KRS 421.230 to 421.270 shall include a person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution or proceeding.
  2. The word “state” shall include any territory of the United States and District of Columbia.
  3. The word “summons” shall include a subpoena, order or other notice requiring the appearance of a witness.

History. Enact. Acts 1952, ch. 132, § 1, effective June 19, 1952.

NOTES TO DECISIONS

1.Time for Requesting Subpoena.

Where defendant claimed his stepfather’s brother had “set him up” for a burglary charge, had attempted to subpoena this man as a witness only on the day set for trial, and had had the subpoena returned unserved with the notation that the witness was then in Indiana, the defendant could not introduce evidence of a prior burglary conviction of the missing witness, since the defendant was aware of the trial date for two (2) months, was well aware of the defense theory, and had ample time to take advantage of the provisions of KRS 421.230 to 421.270 to secure his attendance. Abney v. Commonwealth, 588 S.W.2d 714, 1979 Ky. App. LEXIS 477 (Ky. Ct. App. 1979).

Cited in:

Ross v. Commonwealth, 577 S.W.2d 6, 1977 Ky. App. LEXIS 932 (Ky. Ct. App. 1977).

Notes to Unpublished Decisions

1.Application.

Unpublished decision: Commonwealth’s resort to the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings, KRS 421.230 to 421.270 , is not always required in order to satisfy the “good faith effort” requirement of the Confrontation Clause or the “reasonable means” requirement of KRE. 804(a)(5); while an unsuccessful resort to the Uniform Act may well satisfy the test for unavailability of a witness, failure to do so is not conclusive of the contrary, especially where there is evidence that resort to the Act would be futile. Lovett v. Commonwealth, 103 S.W.3d 72, 2003 Ky. LEXIS 76 ( Ky. 2003 ), aff'd, 2005 Ky. Unpub. LEXIS 23 (Ky. Aug. 25, 2005).

Opinions of Attorney General.

The provisions of KRS 421.230-421.270 only apply where both the state wherein the witness is to testify and the state wherein the witness is located have adopted the Act. OAG 75-136 .

421.240. Procedure for compelling attendance as witnesses in other states of persons in this state — Custody — Disobedience of summons.

  1. If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state certifies under the seal of such court that there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence, that a person being within this state is a material witness in such prosecution, or grand jury investigation, and that his presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county in which such person is, such judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing.
  2. If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending, or grand jury investigation has commenced or is about to commence (and of any other state through which the witness may be required to pass by ordinary course of travel), will give to him protection from arrest and the service of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence at a time and place specified in the summons. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein.
  3. If said certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure his attendance in the requesting state, such judge may, in lieu of notification of the hearing, direct that such witness be forthwith brought before him for said hearing; and the judge at the hearing being satisfied of the desirability of such custody and delivery, for which determination the certificate shall be prima facie proof of such desirability may, in lieu of issuing subpoena or summons, order that said witness be forthwith taken into custody and delivered to an officer of the requesting state.
  4. If the witness, who is summoned as above provided, after being paid or tendered by some properly authorized person the sum of ten cents ($0.10) a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending and five dollars ($5) for each day, that he is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

History. Enact. Acts 1952, ch. 132, § 2, effective June 19, 1952.

NOTES TO DECISIONS

1.Sufficiency.

Circuit court properly dismissed defendant's petition for an out-of-state subpoena for witnesses and evidence from the manufacturer of a breathalyzer because a certificate and order from a Georgia court were facially defective where neither contained a seal of the Georgia court or specified when any witness was to appear in the Georgia proceeding, defendant had alternative means to test the machine, it would be an undue hardship for the manufacturer to produce the machine's source code without a protective order, a hearing was not necessary due to the defective order, and the subpoena was nothing but a classic fishing expedition. Lokk v. CMI, Inc., 457 S.W.3d 330, 2015 Ky. App. LEXIS 25 (Ky. Ct. App. 2015).

Opinions of Attorney General.

If the expenses for the witness are not tendered with the certification to the foreign state, it is not possible to enforce the summons issued in the foreign state. OAG 65-335 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

421.250. Procedure for procuring attendance as witnesses in this state of persons in other states.

  1. If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. Said certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.
  2. If the witness is summoned to attend and testify in this state he shall be tendered the sum of ten cents ($0.10) a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending, and five dollars ($5) for each day that he is required to travel and attend as a witness, same to be paid in manner that other witnesses are paid by the Commonwealth of Kentucky. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If such witness, after coming into this state, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

History. Enact. Acts 1952, ch. 132, § 3, effective June 19, 1952.

Compiler’s Notes.

The Attorney General has rendered an opinion that subsection (2) of this section is impliedly repealed by KRS 421.015 with respect to mileage allowances. See OAG 82-620 .

NOTES TO DECISIONS

1.Application.

This section is not applicable to an RCr 11.42 proceeding. McQueen v. Commonwealth, 721 S.W.2d 694, 1986 Ky. LEXIS 299 ( Ky. 1986 ), cert. denied, 481 U.S. 1059, 107 S. Ct. 2203, 95 L. Ed. 2d 858, 1987 U.S. LEXIS 2233 (U.S. 1987).

Commonwealth’s statement that an informant was unavailable to testify because he could not receive a pass to leave a Teen Challenge program in South Dakota in time for trial was a reasonable basis for the trial judge to conclude, without resort to KRS 421.250 , that to compel the witness to attend a trial in Kentucky would cause him undue hardship; thus, the Commonwealth was properly allowed to depose the informant in South Dakota. Lovett v. Commonwealth, 103 S.W.3d 72, 2003 Ky. LEXIS 76 ( Ky. 2003 ), aff'd, 2005 Ky. Unpub. LEXIS 23 (Ky. Aug. 25, 2005).

KRS 421.250 , which provides a defendant the means to obtain a witness from out-of-state to testify in Kentucky, does not apply to RCr 11.42 postconviction proceedings. Mills v. Messer, 254 S.W.3d 814, 2008 Ky. LEXIS 155 ( Ky. 2008 ).

2.Denial of Continuance.

There was no abuse of discretion in the court’s denying the defendant a continuance because of the absence of a witness who was in the penitentiary where the defendant did not seek to procure his attendance under the law nor make an attempt to take his deposition. Wooldridge v. Commonwealth, 459 S.W.2d 404, 1970 Ky. LEXIS 132 ( Ky. 1970 ), cert. denied, 404 U.S. 909, 92 S. Ct. 225, 30 L. Ed. 2d 182, 1971 U.S. LEXIS 692 (U.S. 1971).

The court did not abuse its discretion in overruling the defendant’s motion for a continuance in the RCr 11.42 hearing to secure out-of-state witnesses and evidence which he alleged were material in proving his ineffective assistance of counsel claim; this section was not applicable, since the alleged error was in an RCr 11.42 hearing to resolve the defendant’s ineffectiveness of counsel claim, not a prosecution. Gall v. Commonwealth, 702 S.W.2d 37, 1985 Ky. LEXIS 286 ( Ky. 1985 ), cert. denied, 478 U.S. 1010, 106 S. Ct. 3311, 92 L. Ed. 2d 724, 1986 U.S. LEXIS 2668 (U.S. 1986).

3.Waiver of Right to Confront Witness.

Defendant and his counsel effected a waiver of the right to confront deponent where ample notice of the deposition was provided to defendant’s counsel, who appeared at the deposition and announced that he was serving notice that he would withdraw as defendant’s counsel, and who made a conscious decision not to remain and not to cross-examine in his representative capacity, and where there was (1) no evidence that defendant, personally, had a legal reason why he was unable to attend, and (2) no proof that his presence would have made a difference. Carter v. Commonwealth, 782 S.W.2d 597, 1989 Ky. LEXIS 76 ( Ky. 1989 ), cert. denied, 497 U.S. 1029, 110 S. Ct. 3282, 111 L. Ed. 2d 791, 1990 U.S. LEXIS 3532 (U.S. 1990), overruled in part, Norton v. Commonwealth, 37 S.W.3d 750, 2001 Ky. LEXIS 20 ( Ky. 2001 ).

4.Sufficiency.

Circuit court properly dismissed defendant's petition for an out-of-state subpoena for witnesses and evidence from the manufacturer of a breathalyzer because a certificate and order from a Georgia court were facially defective where neither contained a seal of the Georgia court or specified when any witness was to appear in the Georgia proceeding, defendant had alternative means to test the machine, it would be an undue hardship for the manufacturer to produce the machine's source code without a protective order, a hearing was not necessary due to the defective order, and the subpoena was nothing but a classic fishing expedition. Lokk v. CMI, Inc., 457 S.W.3d 330, 2015 Ky. App. LEXIS 25 (Ky. Ct. App. 2015).

Cited in:

Bowling v. Commonwealth, 80 S.W.3d 405, 2002 Ky. LEXIS 52 ( Ky. 2002 ), cert. denied, Bowling v. Kentucky, 538 U.S. 931, 123 S. Ct. 1587, 155 L. Ed. 2d 327, 2003 U.S. LEXIS 2321, 71 U.S.L.W. 3610 (2003); Yell v. Commonwealth, 242 S.W.3d 331, 2007 Ky. LEXIS 286 ( Ky. 2007 ).

Opinions of Attorney General.

The circuit court clerk is both authorized and required to advance the expenses provided for in the statute before an out-of-state witness can be validly summoned to testify in a criminal prosecution in this state. OAG 65-335 .

Subsection (2) of this section was not intended to authorize the state’s payment for defense witness expenses. OAG 75-682 .

If a witness who is not within the territory of the United States attends to testify in a criminal proceeding in the State, his transportation expenses would not be authorized under this section. OAG 77-570 .

This section, which provides for procuring prosecuting witnesses from other states but does not cover defense witnesses, involves court action and thus KRS 44.020 applies. OAG 81-336 .

Subsection (2) of this section is impliedly repealed by KRS 421.015 as relates to the mileage factor. OAG 82-620 .

Regarding mileage fee for a nonresident witness in a felony case, KRS 421.015 , 421.030 and subdivision (2) of this section must be read together under the doctrine of pari materia. Thus a nonresident witness, residing in a state which has adopted the Uniform Witness Act, and who is certified as a material witness for a Kentucky court felony case, is entitled to the mileage of 18 cents per mile where a privately owned vehicle is used, or where the witness elects to travel by some other means, including air, except that the 18 cents per mile payment cannot exceed airplane coach fare; in addition, under subdivision (2) of this section, such witness is entitled to the $5.00 per diem and under KRS 421.030 , such witness is entitled to reimbursement for reasonable lodging, food, tools and taxifares. OAG 82-620 .

Notwithstanding the ordinary level of reimbursement of travel expenses to be afforded nonresident material witnesses in felony cases, the Commonwealth must pay, as part of the necessary expenses of a witness, that amount required by the law of another state (one adopting the Uniform Witness Act) to be tendered in advance to a nonresident witness, as a prerequisite to issuance of its subpoena requiring a witness to travel to and give testimony in Kentucky. OAG 82-620 .

Research References and Practice Aids

Kentucky Law Journal.

Gillig, Kentucky Post-Conviction Remedies and the Judicial Development of Kentucky Rule of Criminal Procedure 11.42, 83 Ky. L.J. 265 (1994-95).

421.260. Immunity of witnesses of other states from arrest or service of civil and criminal process.

  1. If a person comes into this state in obedience to a summons directing him to attend and testify in this state he shall not while in this state pursuant to such summons be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.
  2. If a person passes through this state while going to another state in obedience to a summons to attend and testify in that state or while returning therefrom, he shall not while so passing through this state be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.

History. Enact. Acts 1952, ch. 132, § 4, effective June 19, 1952.

NOTES TO DECISIONS

1.Subpoena of Deponent.

Deponent was not subject to subpoena for trial when he was present in the jurisdiction only by reason of a court order to attend and testify by deposition. Carter v. Commonwealth, 782 S.W.2d 597, 1989 Ky. LEXIS 76 ( Ky. 1989 ), cert. denied, 497 U.S. 1029, 110 S. Ct. 3282, 111 L. Ed. 2d 791, 1990 U.S. LEXIS 3532 (U.S. 1990), overruled in part, Norton v. Commonwealth, 37 S.W.3d 750, 2001 Ky. LEXIS 20 ( Ky. 2001 ).

2.Arrest of Witness.

Although it was error under KRS 421.260(1) for an out-of-state witness to have been arrested while she was present in Kentucky to testify in a trial, there was no evidence that the witness was threatened with prosecution by the Commonwealth relative to her testimony at defendant’s trial or that the testimony of the witness was in any way coerced by the Commonwealth. Accordingly, the error was not a structural error that affected the entire framework of the trial, but a trial error which did not require reversal under RCr 10.26 in the context of other evidence presented. Yell v. Commonwealth, 242 S.W.3d 331, 2007 Ky. LEXIS 286 ( Ky. 2007 ), cert. denied, 553 U.S. 1011, 128 S. Ct. 2068, 170 L. Ed. 2d 806, 2008 U.S. LEXIS 3540 (U.S. 2008).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Witnesses, § 55.00.

421.270. Citation of KRS 421.230 to 421.270.

KRS 421.230 to 421.270 may be cited as “Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings.”

History. Enact. Acts 1952, ch. 132, § 5, effective June 19, 1952.

421.350. Testimony of child allegedly victim of illegal sexual activity.

  1. This section applies only to a proceeding in the prosecution of an offense, including but not limited to an offense under KRS 510.040 to 510.155 , 529.030 to 529.050 , 529.070 , 529.100 , 529.110 , 530.020 , 530.060 , 530.064(1)(a), 531.310 , 531.320 , 531.370 , or any specified in KRS 439.3401 and all dependency proceedings pursuant to KRS Chapter 620, when the act is alleged to have been committed against a child twelve (12) years of age or younger, and applies to the statements or testimony of that child or another child who is twelve (12) years of age or younger who witnesses one of the offenses included in this subsection.
  2. The court may, on the motion of the attorney for any party and upon a finding of compelling need, order that the testimony of the child be taken in a room other than the courtroom and be televised by closed circuit equipment in the courtroom to be viewed by the court and the finder of fact in the proceeding. Only the attorneys for the defendant and for the state, persons necessary to operate the equipment, and any person whose presence the court finds would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony. Only the attorneys may question the child. The persons operating the equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during his testimony, but does not permit the child to see or hear them. The court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant.
  3. The court may, on the motion of the attorney for any party and upon a finding of compelling need, order that the testimony of the child be taken outside the courtroom and be recorded for showing in the courtroom before the court and the finder of fact in the proceeding. Only those persons permitted to be present at the taking of testimony under subsection (3) of this section may be present during the taking of the child’s testimony, and the persons operating the equipment shall be confined from the child’s sight and hearing as provided by subsection (3) of this section. The court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant. The court shall also ensure that:
    1. The recording is both visual and oral and is recorded on film or videotape or by other electronic means;
    2. The recording equipment was capable of making an accurate recording, the operator was competent, and the recording is accurate and is not altered;
    3. Each voice on the recording is identified; and
    4. Each party is afforded an opportunity to view the recording before it is shown in the courtroom.
  4. If the court orders the testimony of a child to be taken under subsection (2) or (3) of this section, the child may not be required to testify in court at the proceeding for which the testimony was taken, but shall be subject to being recalled during the course of the trial to give additional testimony under the same circumstances as with any other recalled witness, provided that the additional testimony is given utilizing the provisions of subsection (2) or (3) of this section.
  5. For the purpose of subsections (2) and (3) of this section, “compelling need” is defined as the substantial probability that the child would be unable to reasonably communicate because of serious emotional distress produced by the defendant’s presence.

History. Enact. Acts 1984, ch. 382, § 19, effective July 13, 1984; 1986, ch. 439, § 2, effective July 15, 1986; 1996, ch. 178, § 1, effective July 15, 1996; 2006, ch. 182, § 63, effective July 12, 2006; 2007, ch. 19, § 10, effective June 26, 2007; 2008, ch. 58, § 1, effective July 15, 2008; 2013, ch. 25, § 21, effective June 25, 2013.

NOTES TO DECISIONS

1.Constitutionality.

The limited provisions of subsections (3) and (4) of this section as they apply to child witnesses 12 years of age or younger who are the victims of sex abuse are constitutional, as they do not deny the right of confrontation by a defendant as protected by Ky. Const., § 11 and the Sixth Amendment to the United States Constitution nor do they violate the separation of powers doctrine as provided by Ky. Const., §§ 28 and 109. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

Subsection (2) of this section does not violate a defendant’s constitutional right to confront witnesses, nor does it unconstitutionally infringe upon the inherent powers of the judiciary. Eastman v. Commonwealth, 720 S.W.2d 348, 1986 Ky. App. LEXIS 1478 (Ky. Ct. App. 1986).

The defendant’s right of confrontation secured to him under the Sixth Amendment of the United States Constitution, as well as Ky. Const., § 11, was not violated by the trial court’s utilization of the procedure set forth in this section, where the defendant had an opportunity to cross-examine the victim and to determine whether such statements were reliable. Eastman v. Commonwealth, 720 S.W.2d 348, 1986 Ky. App. LEXIS 1478 (Ky. Ct. App. 1986).

This section, which permits testimony from a child who has not been declared by the trial court competent to testify as a witness, is an unconstitutional infringement on the inherent powers of the judiciary, as declared in Ky. Const., §§ 27 and 28, and since this section authorizes a child to be a witness without first having undertaken a solemn obligation to tell the truth, it is a legislative interference with the orderly administration of justice. Gaines v. Commonwealth, 728 S.W.2d 525, 1987 Ky. LEXIS 196 ( Ky. 1987 ).

2.Applicability.

Prosecution could not avail itself of KRS 421.350 regarding the testimony of a child witness because none of the offenses with which defendant was charged were included in the class of offenses in the statute. Yell v. Commonwealth, 242 S.W.3d 331, 2007 Ky. LEXIS 286 ( Ky. 2007 ), cert. denied, 553 U.S. 1011, 128 S. Ct. 2068, 170 L. Ed. 2d 806, 2008 U.S. LEXIS 3540 (U.S. 2008).

3.Purpose.

This section protects child victims who were 12 and under when crimes were committed against them and who remain children at the time of trial. Danner v. Commonwealth, 963 S.W.2d 632, 1998 Ky. LEXIS 19 (Ky.), cert. denied, 525 U.S. 1010, 119 S. Ct. 529, 142 L. Ed. 2d 439, 1998 U.S. LEXIS 7271 (U.S. 1998).

4.Factors Considered.

When a child witness is too frightened or inarticulate to allow any significant examination, even at a competency hearing, then a finding of unavailability and the use of televised testimony may be justified. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

In determining whether to permit the use of television cameras to present the testimony in a sex abuse proceeding of a victim under the age of 12, the trial court must have wide discretion to consider the age and demeanor of the child witness, the nature of the offense and the likely impact of testimony in court or facing the defendant. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

In making a compelling need determination under this section, especially when the child is older than 12, the court should consider the age of the victim and the time that has elapsed from the crime to the date of trial. Danner v. Commonwealth, 963 S.W.2d 632, 1998 Ky. LEXIS 19 (Ky.), cert. denied, 525 U.S. 1010, 119 S. Ct. 529, 142 L. Ed. 2d 439, 1998 U.S. LEXIS 7271 (U.S. 1998).

5.Discretion of Court.

Subsections (3), (4), and (5) of this section permitting the use of television cameras to present the testimony in a sex abuse prosecution of a victim under the age of 12 are not automatic but instead rest in the sound discretion of the trial judge; if the prosecution is unable to show any necessity for use of these subsections, it could be an abuse of discretion to grant a motion over defense objection. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

It was not an abuse of discretion in a sodomy prosecution to allow the 15-year-old victim to testify by means of closed circuit television, where the daughter of the defendant was the alleged victim when she was between five (5) and ten (10), and the court found that requiring her to present her testimony in open court would inhibit her to the degree that the jury’s search for the truth would be clouded. Danner v. Commonwealth, 963 S.W.2d 632, 1998 Ky. LEXIS 19 (Ky.), cert. denied, 525 U.S. 1010, 119 S. Ct. 529, 142 L. Ed. 2d 439, 1998 U.S. LEXIS 7271 (U.S. 1998).

6.Videotaped Testimony Equivalent of Court Testimony.

The videotaped or televised testimony under subsections (3) or (4) of this section is not hearsay; it is the functional equivalent of testimony in court because the testimony is taken with the court, counsel and the defendant present in person, full cross-examination is authorized, and the defendant and the jury can see and hear the witness and assess credibility by observation of the demeanor of the witness. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

7.Confrontation.

The privilege of viewing a witness through a one-way mirror or a video monitor is a constitutionally acceptable substitute for face-to-face confrontation. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

Inmate’s Confrontation Clause rights were not violated when his allegedly sexually abused daughter, though age 15, testified against him via closed circuit per KRS 421.350 . The trial court’s compelling need determination was supported by its findings that her reliability was at stake, and that the inmate was the cause of her distress, which was not de minimis. Danner v. Motley, 448 F.3d 372, 2006 FED App. 0159P, 2006 U.S. App. LEXIS 11681 (6th Cir. Ky. 2006 ).

Trial court’s granting of prosecutor’s request to stand between two children testifying about the attack on their mother and defendant violated KRS 421.350 because the trial court did not make a finding that there was a “compelling need” to impair defendant’s view of those witnesses. Even though the trial court’s decision also violated defendant’s Sixth Amendment and Ky. Const. § 11 confrontation clause right to view witnesses, the violation was harmless beyond a reasonable doubt because the two children were not key witnesses and other compelling evidence supported the mother’s version of defendant’s attack on her. Sparkman v. Commonwealth, 250 S.W.3d 667, 2008 Ky. LEXIS 106 ( Ky. 2008 ).

Court of Appeals of Kentucky rejects the contention that compliance with Ky. Rev. Stat. Ann. § 26A.140 necessarily requires implementation of the procedures set forth in Ky. Rev. Stat. Ann. § 421.350 . The legislature has had ample opportunity to amend § 26A.140 if it intended the phrase procedures shall be used to shield children from visual contact with alleged perpetrator to mean compliance with § 421.350 , or to amend § 421.350 to reference § 26A.140. The Court of Appeals can only interpret the plain meaning of the words, which do not mandate taking of child witnesses' testimony via closed circuit television in either provision. J.E. v. Commonwealth, 521 S.W.3d 210, 2017 Ky. App. LEXIS 99 (Ky. Ct. App. 2017).

Court of Appeals of Kentucky interprets the phrase “not unduly burdensome to the rights of the defendant” from Ky. Rev. Stat. Ann. § 26A.140 to be analogous to the requirement of a finding of a compelling need found in Ky. Rev. Stat. Ann. § 421.350 , as both provisions would require such finding under judicial precedent in order to comply with the Confrontation Clause. J.E. v. Commonwealth, 521 S.W.3d 210, 2017 Ky. App. LEXIS 99 (Ky. Ct. App. 2017).

Compelling need language of Ky. Rev. Stat. Ann. § 421.350 requires a determination that the child witness would be unable to testify in open court. The Kentucky Statute does not provide a blanket process for taking the testimony of every child witness by TV simply because testifying may be stressful. J.E. v. Commonwealth, 521 S.W.3d 210, 2017 Ky. App. LEXIS 99 (Ky. Ct. App. 2017).

District court abused its discretion and violated the juvenile's right to confrontation in erecting screens to obstruct his views of the child witness during her testimony where there was no evidence of a compelling need to modify the courtroom environment. J.E. v. Commonwealth, 521 S.W.3d 210, 2017 Ky. App. LEXIS 99 (Ky. Ct. App. 2017).

Commonwealth’s motion to allow the child victim to testify via closed circuit television in the judge’s chambers, rather than on the witness stand in the courtroom with defendant, was properly granted because the child’s therapist stated that the child would likely be quiet or shut down if he was in the room with defendant. Green v. Commonwealth, 2021 Ky. App. Unpub. LEXIS 154 (Ky. Ct. App. Mar. 26, 2021).

8.Cross-Examination.

Subsections (3) and (4) of this section do not unduly inhibit the right of cross-examination; the accused still has the right to hear and observe the witness testify and the jury has the opportunity to view the video and evaluate the demeanor and credibility of the witness. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

This section does not conflict or violate the requirements of RCr 7.12, as the right of cross-examination is fully protected. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

9.Objections.

A defendant has the right to object to and seek exclusion of all portions of a tape which he considers unfair or unduly prejudicial. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

10.Leading Questions.

Although, in prosecution for sexual abuse of a three-year-old victim, certain leading questions were asked of the victim, such questions were not designed or calculated to lead the victim to make a particular statement and often ended in inconclusive or negative responses on her part; therefore, any error was harmless, and the trial court did not abuse its discretion in admitting into evidence the interview. Eastman v. Commonwealth, 720 S.W.2d 348, 1986 Ky. App. LEXIS 1478 (Ky. Ct. App. 1986).

11.Inadmissible Testimony.

Where, in prosecution for sexual abuse, rape, and sodomy, the videotape testimony of the ten-year-old complaining witness was introduced under subsection (2) of this section, and the videotape testimony was heard without a determination of witness competency and without the taking of an oath, the testimony was inadmissible, and it was of no consequence that the child witness was declared competent to testify and took an oath after the videotape was played. Ballard v. Commonwealth, 743 S.W.2d 21, 1988 Ky. LEXIS 6 ( Ky. 1988 ).

In a prosecution of the defendant for the murder of his wife and the rape of his stepdaughter, the statute was violated and a new trial was required with regard to the rape charge since (1) the defendant was excluded from the courtroom while the victim testified and was required to view the testimony by video monitor, whereas the statute provides that the defendant will remain in the courtroom and the child witness will testify from another room, (2) the defendant was not in continuous audio contact with his defense counsel, and (3) no hearing was held nor finding made with respect to whether there was a compelling need to employ the procedure in the case. Price v. Commonwealth, 31 S.W.3d 885, 2000 Ky. LEXIS 141 ( Ky. 2000 ).

12.Witnesses.

Subsection (3) of this section, which authorizes the use of videotaped testimony from a child victim, does not apply to a witness. George v. Commonwealth, 885 S.W.2d 938, 1994 Ky. LEXIS 116 ( Ky. 1994 ).

Trial court committed reversible error and abused its discretion by improperly applying subsection (3) of this section so as to allow child witness to testify via closed circuit television, as she was not a child victim as provided for in this section. George v. Commonwealth, 885 S.W.2d 938, 1994 Ky. LEXIS 116 ( Ky. 1994 ).

In defendant’s trial for murder under KRS 507.020(1), the trial court erred in allowing a minor child to testify outside the courtroom via closed circuit TV because the minor was not a member of the class of minors authorized to testify under KRS 421.350 . However, that error was harmless under U.S. Const. amend. VI and Ky. Const. § 11 and did not require reversal under RCr 9.24 after defendant conceded that the minor’s testimony was redundant and therefore not critical to the Commonwealth’s case. Greene v. Commonwealth, 197 S.W.3d 76, 2006 Ky. LEXIS 140 ( Ky. 2006 ), cert. denied, 549 U.S. 1184, 127 S. Ct. 1157, 166 L. Ed. 2d 1001, 2007 U.S. LEXIS 1235 (U.S. 2007).

13.Observers.

Trial court erred by allowing the mother, the mother’s divorce attorney, a social worker, and the maternal grandparents, but not the father, to be in the room during the questioning of the child in a dependency action because the trial court made no finding that the presence of those people was necessary for the welfare and well-being of the child. Z.T. v. M.T., 258 S.W.3d 31, 2008 Ky. App. LEXIS 206 (Ky. Ct. App. 2008).

14.Waiver.

Waiver of an objection to taking testimony of a child victim pursuant to this section can be executed by counsel without a personal waiver by the defendant. Howard v. Commonwealth, 595 S.W.3d 462, 2020 Ky. LEXIS 11 ( Ky. 2020 ).

Cited in:

Kentucky v. Stincer, 479 U.S. 1303, 107 S. Ct. 7, 93 L. Ed. 2d 235, 1986 U.S. LEXIS 5341 (1986); Hardy v. Commonwealth, 719 S.W.2d 727, 1986 Ky. LEXIS 304 ( Ky. 1986 ); Hester v. Commonwealth, 734 S.W.2d 457, 1987 Ky. LEXIS 219 ( Ky. 1987 ).

Opinions of Attorney General.

The important public policy and interest in protecting the welfare and psychological and physical well-being of children is no less compelling when the child is a witness to a crime rather than a victim, and this important public policy is sufficient to justify the absence of face-to-face confrontation with the defendant where the court determines that use of closed circuit television or video taped testimony, is necessary in a particular case; therefore, the extending of the special procedures of this section to witnesses who are 12 years of age or younger did not violate the defendant’s state or federal constitutional right to confront the witnesses against him. OAG 96-14 .

The provisions of this section and Kentucky Acts 1996 chapter 178 (Senate Bill 169), which amended this section by extending the procedures for use of video taped and closed circuit television testimony to not only offenses involving sexual contact but also to proceedings where the child is alleged to be abused, neglected or otherwise endangered are directly related to furthering the important public policy of protecting the well-being and welfare of children; thus, use of the special procedures provided by the statute in these narrowly defined types of cases for a narrowly defined group of witnesses, is not unconstitutionally broad and does not violate the defendant’s rights to confrontation under the state and federal constitutions. OAG 96-14 .

Research References and Practice Aids

Kentucky Bench & Bar.

Preston, Video Evidence in Child Sexual Abuse Cases, Volume 52, No. 2, Spring 1988 Ky. Bench & B. 11.

Tapp, Deters, Out of the Mouth of Babes . . . . . The Child Witness, Vol. 42, No. 3, Summer 1996 Ky. Bench & B. 12.

Wiederstein, Closed Courtrooms and the Public’s Right of Access, Vol. 67, No. 4, July 2003, Ky. Bench & Bar 15.

Hunt, Human Trafficking: A Primer for Kentucky Lawyers. Vol. 73, No. 4, July 2009, Ky. Bench & Bar, 17.

DiLoreto, KRS 26A.140 , Its Plain Meaning, Current and Potential Application to Assist Children in Court Proceedings. Vol. 73, No. 4, July 2009, Ky. Bench & Bar, 24.

Kentucky Law Journal.

Potuto, Stanley + Ferber = The Constitutional Crime of At-Home Child Pornography Possession, 76 Ky. L.J. 15 (1987-88).

Comments, “Face — to Television Screen — to Face”: Testimony by Closed-Circuit Television in Cases of Alleged Child Abuse and the Confrontation Right, 76 Ky. L.J. 273 (1987-88).

Comment, “Protecting the Innocent: Confrontation, Coy v. Iowa, and Televised Testimony in Child Sexual Abuse Cases,” 78 Ky. L.J. 803 (1989-90).

Dunn, “Face to Face” with the Right of Confrontation: A Critique of the Supreme Court of Kentucky’s Approach to the Confrontation Clause of the Kentucky Constitution, 96 Ky. L.J. 301 (2007).

Northern Kentucky Law Review.

Notes, An Overview of the Competency of Child Testimony, 13 N. Ky. L. Rev. 181 (1986).

Armstrong & Gillig, Responding to Child Sexual Abuse and Exploitation: The Kentucky Approach, 16 N. Ky. L. Rev. 17 (1988).

Tapp and Tincher, Of Innocents and Offenders: A Survey of Children’s Law in Kentucky, 30 N. Ky. L. Rev. 131 (2003).

421.355. Admissibility of victim’s out-of-court statements. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 439, § 1, effective July 15, 1986) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 801A to 804.

421.360. Uniform Interstate Depositions and Discovery Act.

  1. This section may be cited as the Uniform Interstate Depositions and Discovery Act.
  2. As used in this section:
    1. “Foreign jurisdiction” means a state other than this state;
    2. “Foreign subpoena” means a subpoena issued under authority of a court of record of a foreign jurisdiction;
    3. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity;
    4. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States; and
    5. “Subpoena” means a document, however denominated, issued under authority of a court of record requiring a person to:
      1. Attend and give testimony at a deposition;
      2. Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or
      3. Permit inspection of premises under the control of the person.
    1. To request issuance of a subpoena under this section, a party shall submit a foreign subpoena to the clerk of the Circuit Court of the county in which discovery is sought to be conducted in this state. A request for the issuance of a subpoena under this section does not constitute an appearance in the courts of this state. (3) (a) To request issuance of a subpoena under this section, a party shall submit a foreign subpoena to the clerk of the Circuit Court of the county in which discovery is sought to be conducted in this state. A request for the issuance of a subpoena under this section does not constitute an appearance in the courts of this state.
    2. When a party submits a foreign subpoena to a clerk of the Circuit Court in this state, the clerk, in accordance with that court’s procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.
    3. A subpoena under paragraph (b) of this subsection shall:
      1. Incorporate the terms used in the foreign subpoena; and
      2. Contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.
  3. A subpoena issued by a clerk of the Circuit Court under subsection (3) of this section shall be served in compliance with any rule of court or statute relating to the service of a subpoena issued in this state.
  4. Rules of court and any provision of the Kentucky Revised Statutes applicable to compliance with subpoenas to attend and give testimony; produce designated books, documents, records, electronically stored information, or tangible things; or permit inspection of premises shall apply to subpoenas issued under subsection (3) of this section.
  5. An application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of the Circuit Court under subsection (3) of this section shall comply with the rules of court of this state and statutes of this state and be submitted to the Circuit Court in the county in which discovery is to be conducted.
  6. In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
  7. This section applies to requests for discovery in cases pending on July 15, 2008.

History. Enact. Acts 2008, ch. 114, § 1, effective July 15, 2008.

Crime Victim and Witness Protection

421.500. “Victim” defined for KRS 421.500 to 421.575 — Applicability — Required notifications — Duties of public officers and agencies — Restitution — Construction of KRS 421.500 to 421.575.

    1. As used in KRS 421.500 to 421.575 , “victim” means an individual directly and proximately harmed as a result of: (1) (a) As used in KRS 421.500 to 421.575 , “victim” means an individual directly and proximately harmed as a result of:
      1. The commission of a crime classified as a felony; a misdemeanor involving threatened or actual physical injury, harassment, or restraint; a misdemeanor involving a child or incompetent person; or a misdemeanor involving a sexual offense or a trespass; or
      2. Conduct which, if committed by an adult, would be classified as a felony or a misdemeanor described in subparagraph 1. of this paragraph. If the victim is a minor, incapacitated, or deceased, “victim” also means one (1) or more of the victim’s spouse, parents, siblings, children, or other lawful representatives which shall be designated by the court unless the person is the defendant or a person the court finds would not act in the best interests of the victim.
    2. In a case in which the number of victims makes it impracticable to accord all victims those rights provided by KRS 421.500 to 421.575, the court may fashion a reasonable procedure that does not unduly complicate or prolong the proceeding, to give effect to this section.
    3. If the victim is deceased and the relation is not the defendant, the following relations shall be designated as “victims” for the purpose of presenting victim impact testimony under KRS 532.055(2)(a)7.:
      1. A spouse;
      2. An adult child;
      3. A parent;
      4. A sibling; and
      5. A grandparent.
  1. If any court believes that the health, safety, or welfare of a victim who is a minor or is legally incapacitated would not otherwise adequately be protected, the court may appoint a special advocate to represent the interest of the victim and to exercise those rights provided for by KRS 421.500 to 421.575 . Communication between the victim and the special advocate shall be privileged.
  2. Law enforcement personnel shall ensure that victims receive information on available protective, emergency, social, and medical services upon initial contact with the victim and are given information on the following as soon as possible:
    1. Availability of crime victim compensation where applicable;
    2. Community-based treatment programs;
    3. The criminal justice process as it involves the participation of the victim or witness;
    4. The arrest of the accused; and
    5. How to register to be notified when a person has been released from prison, jail, a juvenile detention facility, or a psychiatric facility or forensic psychiatric facility if the case involves a violent crime as defined in KRS 439.3401 and the person charged with or convicted of the offense has been involuntarily hospitalized pursuant to KRS Chapter 202A.
  3. Law enforcement officers and attorneys for the Commonwealth shall provide information to victims and witnesses on how they may be protected from intimidation, harassment, and retaliation as defined in KRS 524.040 or 524.055 .
  4. Attorneys for the Commonwealth shall make a reasonable effort to insure that:
    1. All victims and witnesses who are required to attend criminal justice proceedings are notified promptly of any scheduling changes that affect their appearances;
    2. If victims so desire and if they provide the attorney for the Commonwealth with a current address and telephone number, they shall receive prompt notification, if possible, of judicial proceedings relating to their case, including but not limited to the defendant’s release on bond and any special conditions of release; of the charges against the defendant, the defendant’s pleading to the charges, and the date set for the trial; of notification of changes in the custody of the defendant and changes in trial dates; of the verdict, the victim’s right to make an impact statement for consideration by the court at the time of sentencing of the defendant, the date of sentencing, the victim’s right to receive notice of any parole board hearing held for the defendant, and that the office of Attorney General will notify the victim if an appeal of the conviction is pursued by the defendant; and of a scheduled hearing for shock probation or for bail pending appeal and any orders resulting from that hearing;
    3. The victim knows how to register to be notified when a person has been released from a prison, jail, a juvenile detention facility, or a psychiatric facility or forensic psychiatric facility if the case involves a violent crime as defined in KRS 439.3401 and the person charged with or convicted of the offense has been involuntarily hospitalized pursuant to KRS Chapter 202A;
    4. The victim receives information on available:
      1. Protective, emergency, social, and medical services;
      2. Crime victim compensation, where applicable;
      3. Restitution, where applicable;
      4. Assistance from a victim advocate; and
      5. Community-based treatment programs; and
    5. The victim of crime may, pursuant to KRS 15.247 , receive protection from harm and threats of harm arising out of cooperation with law enforcement and prosecution efforts.
  5. The victim shall be consulted by the attorney for the Commonwealth on the disposition of the case, including dismissal, release of the defendant pending judicial proceedings, any conditions of release, a negotiated plea, and entry into a pretrial diversion program.
  6. In prosecution for offenses listed in this section for the purpose of defining “victim,” law enforcement agencies and attorneys for the Commonwealth shall promptly return a victim’s property held for evidentiary purposes unless there is a compelling reason for retaining it. Photographs of such property shall be received by the court as competent evidence in accordance with the provisions of KRS 422.350 .
  7. A victim or witness who so requests shall be assisted by law enforcement agencies and attorneys for the Commonwealth in informing employers that the need for victim or witness cooperation in the prosecution of the case may necessitate absence of that victim or witness from work.
  8. The Attorney General, where possible, shall provide technical assistance to law enforcement agencies and attorneys for the Commonwealth if such assistance is requested for establishing a victim assistance program.
  9. If a defendant seeks appellate review of a conviction and the Commonwealth is represented by the Attorney General, the Attorney General shall make a reasonable effort to notify victims promptly of the appeal, the status of the case, and the decision of the appellate court.
  10. Full restitution to a named victim, if there is a named victim, shall be ordered by the court to be paid by the convicted or adjudicated party in a manner consistent, insofar as possible, with this section and KRS 439.563 , 532.032 , 532.033 , 533.020 , and 533.030 in addition to any other penalty.
  11. Nothing in KRS 421.500 to 421.575 shall be construed as altering the presumption of innocence in the criminal justice system, or to be a waiver of sovereign immunity or any other immunity or privilege maintained by the Commonwealth; its cabinets, departments, bureaus, political subdivisions, and agencies; and its officers, agents, and employees.

History. Enact. Acts 1986, ch. 212, § 1, effective July 15, 1986; 1996, ch. 375, § 3, effective July 15, 1996; 1998, ch. 606, § 40, effective July 15, 1998; 2000, ch. 401, § 12, effective July 14, 2000; 2008, ch. 60, § 1, effective July 15, 2008; 2013, ch. 25, § 18, effective June 25, 2013; 2020 ch. 101, § 2, effective November 3, 2020.

Compiler’s Notes.

Section 5, Acts 1996, ch. 375 read: “This Act shall become effective on the normal date for legislation passed by the 1996 Regular Session of the General Assembly for the purposes of beginning implementation of the provisions of Sections 1 to 4 of this Act. Phased implementation of the provisions of Sections 1 to 4 of this Act shall be accomplished according to a schedule promulgated by the Department of Corrections by administrative regulation which shall provide for full implementation of the program and full victim access by January 1, 1998. Any or all portions of the program may be implemented at a date earlier than January 1, 1998.”

Legislative Research Commission Notes.

(11/3/2020). 2020 Ky. Acts ch. 101, sec. 8, provides that the repeal, reenactment, and amendment of this statute in Section 2 of that Act “shall take effect only upon the ratification, in the general election of November 3, 2020, of a Constitutional amendment providing for the protection of crime victims’ rights. If such an amendment is not ratified, this Act shall be void. The proposed amendment was ratified, effective November 3, 2020, becoming Kentucky Constitution Section 26A.”

(6/13/2019). 2018 Ky. Acts ch. 19, sec. 8, provides that the repeal, reenactment, and amendment of this statute in that Act “shall take effect only upon the ratification, in the general election of November 6, 2018, of a Constitutional amendment providing for the protection of crime victims’ rights. If such an amendment is not ratified, this Act shall be void.” On June 13, 2019, the Kentucky Supreme Court ruled that the language of the proposed amendment was not properly submitted to the voters at that election and, therefore, its ratification was void under Section 256 of the Kentucky Constitution. Consequently, the repeal, reenactment, and amendment of this statute in 2019 Ky. Acts ch. 19, sec. 2, was not given effect.

(7/15/2008). Subsection (4) of this statute contained a reference to KRS 524.045 , which was repealed in 2002 Ky. Acts ch. 251, sec. 6, effective July 15, 2002. The reference to KRS 524.045 should have been deleted from this statute as a conforming amendment in that Act, or even when this statute was amended in 2008. The Reviser of Statutes has removed the reference during the codification of 2008 Ky. Acts ch. 60, sec. 1, under the authority of KRS 7.136(1)(h) to correct manifest clerical or typographical errors.

NOTES TO DECISIONS

1.Legislative Intent.

Section (9) of Chapter 212 of the Acts of the 1986 General Assembly, codified as KRS 421.550 , mistakenly omitted KRS 421.500(4) from the “no-liability” provisions and, therefore, KRS 421.550 must be read to include KRS 421.500(4); therefore, no liability may be predicated on a violation of KRS 421.500(4). Collins v. Hudson, 48 S.W.3d 1, 2001 Ky. LEXIS 117 ( Ky. 2001 ).

2.Plea Bargain.

The rights provided to crime victims by this section and the sections following belong to the victim independent of the Commonwealth, and cannot be plea bargained away without the crime victim’s actual approval. Wilson v. Commonwealth, 839 S.W.2d 17, 1992 Ky. App. LEXIS 171 (Ky. Ct. App. 1992).

3.Standing of Victim.

Widow of victim, killed by defendant subsequently convicted of reckless homicide and leaving the scene of an accident and granted shock probation pursuant to KRS 439.265 , did not have standing under either KRS 439.265 , 421.520(3), 533.030 or this section to petition the court for writ of mandamus directing the trial judge to reconsider the decision granting shock probation; thus, issuance of such writ was reversed and order of trial court granting shock probation was reinstated. Schroering v. McKinney, 906 S.W.2d 349, 1995 Ky. LEXIS 102 ( Ky. 1995 ).

4.Lesser Crimes.

Even though crime victim protection statute did not include defendant’s crimes in its list of offenses, third-degree burglary and harassing communications were not victimless crimes, such that victims should not have been allowed to testify in defendant’s sentencing hearing. Brand v. Commonwealth, 939 S.W.2d 358, 1997 Ky. App. LEXIS 16 (Ky. Ct. App. 1997).

5.Secondary Victim.

Murder victim’s daughter was properly permitted to testify at defendant’s sentencing when the victim’s spouse declined to testify; however, the trial court erred in allowing both the victim’s daughter and the victim’s sister to testify. Terry v. Commonwealth, 153 S.W.3d 794, 2005 Ky. LEXIS 16 ( Ky. 2005 ).

In a case charging defendant with complicity to commit rape arising from sexual contact between defendant’s boyfriend and defendant’s daughter, there was no error in the admission of the victim impact statement of the daughter’s father. Robinson v. Commonwealth, 2007 Ky. App. LEXIS 319 (Ky. Ct. App. Aug. 31, 2007).

6.Improper Victim Impact Evidence.

In a death penalty case, because defendant was being tried for the murder of the second victim, and not the first victim, the first victim's wife was not a victim of the crime for which defendant was being tried and her victim impact testimony should not have been considered by the jury as it affected defendant's constitutional rights; however, the error was harmless because the jury heard how defendant had been incarcerated in Oklahoma awaiting sentencing for two other murders when he escaped; the proof included the proper victim-impact testimony from the second victim's daughter; and the jury heard testimony that defendant had claimed that killing people was like killing dogs and that it was easy after the first one. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

7.—Cousin.

Although the individual who gave victim impact evidence under KRS 532.055(2)(a)(7) was a first cousin and not a relative permitted to provide such testimony under KRS 421.500(1)(b), the cousin’s testimony was not so extreme, emotional, or outrageous as to result in manifest injustice and admission of her testimony did not constitute palpable error under RCr P. 10.26. Elery v. Commonwealth, 368 S.W.3d 78, 2012 Ky. LEXIS 87 ( Ky. 2012 ).

Although KRS 532.055 (a)(7) and 421.500(1)(b) did not permit victim impact evidence from a friend, because the friend’s testimony was not so moving or emotional that it was likely to have inspired the jury toward a more severe sentence, there was no palpable error from the improperly admitted victim impact evidence. McGuire v. Commonwealth, 368 S.W.3d 100, 2012 Ky. LEXIS 97 ( Ky. 2012 ).

8.Task Force.

In a drug case, it was improper to order defendant to pay restitution to a task force because it did not suffer direct or threatened financial harm as a result of defendant's crime. The task force was simply not a victim in the sense that the statutory scheme contemplated to be compensated for any harm it suffered. Hunt v. Commonwealth, 2016 Ky. App. LEXIS 65 (Ky. Ct. App. Apr. 29, 2016).

Cited in:

Nichols v. Commonwealth, 839 S.W.2d 263, 1992 Ky. LEXIS 143 ( Ky. 1992 ); Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ); Hunt v. Commonwealth, 2009 Ky. LEXIS 292 (Ky. Nov. 25, 2009).

Opinions of Attorney General.

Clearly, this section authorizes appointment of special advocates by the Circuit Court which has jurisdiction over serious crimes. The input of advocates is particularly important in supplying a victim impact statement at the point that the defendant has been convicted. OAG 91-123 .

Court appointed special advocates may be appointed either by the district court under the CASA projects authorized by KRS 620.500-550 or by the circuit court under the authorization of subsection (2) of this section. OAG 91-123 .

Research References and Practice Aids

Northern Kentucky Law Review.

Armstrong & Gillig, Responding to Child Sexual Abuse and Exploitation: The Kentucky Approach, 16 N. Ky. L. Rev. 17 (1988).

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

421.510. Speedy trial where child victim is involved.

  1. Where the victim is less than sixteen (16) years old and the crime is a sexual offense including violations of KRS 510.040 to 510.150 , 530.020 , 530.064(1)(a), 530.070 , 531.310 , 531.320 , and 531.370 , a speedy trial may be scheduled as provided in subsection (2) of this section.
  2. The court, upon motion by the attorney for the Commonwealth for a speedy trial, shall set a hearing date on the motion within ten (10) days of the date of the motion. If the motion is granted, the trial shall be scheduled within ninety (90) days from the hearing date.
  3. In ruling on any motion or other request for a delay or continuance of the proceedings, the court shall consider and give weight to any adverse impact the delay or continuance may have on the well-being of a child victim or witness.

History. Enact. Acts 1986, ch. 212, § 2, effective July 15, 1986; 1998, ch. 606, § 41, effective July 15, 1998; 2006, ch. 182, § 64, effective July 12, 2006; repealed and reenacted by 2018 ch. 19, § 3, effective November 6, 2018; repealed and reenacted by 2020 ch. 101, § 3, effective November 3, 2020.

Legislative Research Commission Notes.

(11/3/2020). 2020 Ky. Acts ch. 101, sec. 8, provides that the repeal and reenactment of this statute in Section 3 of that Act “shall take effect only upon the ratification, in the general election of November 3, 2020, of a Constitutional amendment providing for the protection of crime victims’ rights. If such an amendment is not ratified, this Act shall be void. The proposed amendment was ratified, effective November 3, 2020, becoming Kentucky Constitution Section 26A.”

(6/13/2019). 2018 Ky. Acts ch. 19, sec. 8, provides that the repeal and reenactment of this statute in that Act “shall take effect only upon the ratification, in the general election of November 6, 2018, of a Constitutional amendment providing for the protection of crime victims' rights. If such an amendment is not ratified, this Act shall be void.” On June 13, 2019, the Kentucky Supreme Court ruled that the language of the proposed amendment was not properly submitted to the voters at that election and, therefore, its ratification was void under Section 256 of the Kentucky Constitution. Consequently, the repeal and reenactment of this statute in 2019 Ky. Acts ch. 19, sec. 3, was not given effect.

421.520. Victim impact statement.

  1. The attorney for the Commonwealth shall notify the victim that, upon conviction of the defendant, the victim has the right to submit a written victim impact statement to the probation officer responsible for preparing the presentence investigation report for inclusion in the report or to the court should such a report be waived by the defendant.
  2. The impact statement may contain, but need not be limited to, a description of the nature and extent of any physical, psychological, or financial harm suffered by the victim, the victim’s need for restitution and whether the victim has applied for or received compensation for financial loss, and the victim’s recommendation for an appropriate sentence.
  3. The victim impact statement shall be considered by the court prior to any decision on the sentencing or release, including shock probation, of the defendant.

HISTORY: Enact. Acts 1986, ch. 212, § 3, effective July 15, 1986; repealed and reenacted by 2020 ch. 101, § 4, effective November 3, 2020.

Legislative Research Commission Notes.

(11/3/2020). 2020 Ky. Acts ch. 101, sec. 8, provides that the repeal and reenactment of this statute in Section 4 of that Act “shall take effect only upon the ratification, in the general election of November 3, 2020, of a Constitutional amendment providing for the protection of crime victims’ rights. If such an amendment is not ratified, this Act shall be void. The proposed amendment was ratified, effective November 3, 2020, becoming Kentucky Constitution Section 26A.”

(6/13/2019). 2018 Ky. Acts ch. 19, sec. 8, provides that the repeal and reenactment of this statute in that Act “shall take effect only upon the ratification, in the general election of November 6, 2018, of a Constitutional amendment providing for the protection of crime victims' rights. If such an amendment is not ratified, this Act shall be void.” On June 13, 2019, the Kentucky Supreme Court ruled that the language of the proposed amendment was not properly submitted to the voters at that election and, therefore, its ratification was void under Section 256 of the Kentucky Constitution. Consequently, the repeal and reenactment of this statute in 2019 Ky. Acts ch. 19, sec. 4, was not given effect.

421.530. Submission of victim impact statement to parole board — Duties of parole board.

  1. If a defendant is sentenced to a period of incarceration and his or her release is subject to the authority of the parole board, the victim may submit a written impact statement to the parole board that it shall consider when making a decision on the release of the defendant.
  2. The impact statement may contain, but need not be limited to, a description of the long-term consequences of the crime, including but not necessarily limited to, the physical, psychological, and financial harm suffered by the victim, and whether the victim has applied for or received compensation for financial loss.

HISTORY: Enact. Acts 1986, ch. 212, § 4, effective July 15, 1986; repealed and reenacted by 2020 ch. 101, § 5, effective November 3, 2020.

Legislative Research Commission Notes.

(11/3/2020). 2020 Ky. Acts ch. 101, sec. 8, provides that the repeal and reenactment of this statute in Section 5 of that Act “shall take effect only upon the ratification, in the general election of November 3, 2020, of a Constitutional amendment providing for the protection of crime victims’ rights. If such an amendment is not ratified, this Act shall be void. The proposed amendment was ratified, effective November 3, 2020, becoming Kentucky Constitution Section 26A.”

(6/13/2019). 2018 Ky. Acts ch. 19, sec. 8, provides that the repeal and reenactment of this statute in that Act “shall take effect only upon the ratification, in the general election of November 6, 2018, of a Constitutional amendment providing for the protection of crime victims' rights. If such an amendment is not ratified, this Act shall be void.” On June 13, 2019, the Kentucky Supreme Court ruled that the language of the proposed amendment was not properly submitted to the voters at that election and, therefore, its ratification was void under Section 256 of the Kentucky Constitution. Consequently, the repeal and reenactment of this statute in 2019 Ky. Acts ch. 19, sec. 5, was not given effect.

421.540. Effect of failure to provide required notification. [Repealed]

HISTORY: Enact. Acts 1986, ch. 212, § 8, effective July 15, 1986; repealed by 2020 ch. 101, § 7, effective November 3, 2020.

421.550. No cause of action created — Immunity of jailers or chief administrator acting in good faith — Indemnification — Defense by Attorney General — Immunity of attorney for state acting in good faith.

  1. Nothing in KRS 421.500 to 421.575 , 15.245 , or 196.280 creates a cause of action for money damages against the state, a county, a municipality, or any of their agencies, public officials, or employees.
  2. The jailer or chief administrator of a juvenile detention facility, regional jail, or county jail, or any of their respective designees who acts in good faith in making available the release information required by KRS 196.280 , or in good faith fails or is unable to provide the release information required by KRS 196.280 , shall be immune from any criminal liability.
  3. The jailer or chief administrator of a juvenile detention facility, regional jail, or county jail, or any of their respective designees, who acts in good faith in making available the release information required by KRS 196.280 , or in good faith fails or is unable to provide the release information required by KRS 196.280 , and who is sued for any act or omission in relation to KRS 196.280, and who has a judgment rendered against him and who personally suffers actual financial loss, unreimbursed from any source, by the enforcement and satisfaction of the judgment, including any costs or attorney’s fees awarded pursuant thereto, shall be indemnified by the Commonwealth from funds appropriated to the Finance and Administration Cabinet for the payment of judgments, to the extent of his actual financial loss. The indemnification shall not be construed to abrogate or limit any privilege, immunity, or matter of defense otherwise available to the person claiming indemnification and shall not constitute a waiver of any privilege, immunity, or matter of defense, including the sovereign immunity of the Commonwealth.
  4. The Attorney General shall defend the jailer, chief administrator, or designee upon request, in any suit related to the provision of information under KRS 196.280 .
  5. An attorney for the Commonwealth who acts in good faith in his or her ministerial duties under KRS 421.500 to 421.575 shall be immune from criminal or civil liability. The immunity shall not be construed to abrogate or limit any privilege, immunity, or matter of defense otherwise available and shall not constitute a waiver of any privilege, immunity, or matter of defense, including the sovereign immunity of the Commonwealth.

HISTORY: Enact. Acts 1986, ch. 212, § 9, effective July 15, 1986; 1996, ch. 375, § 4, effective July 15, 1996; 2020 ch. 101, § 6, effective November 3, 2020.

Legislative Research Commission Notes.

(11/3/2020). 2020 Ky. Acts ch. 101, sec. 8, provides that the amendment of this statute in Section 6 of that Act “shall take effect only upon the ratification, in the general election of November 3, 2020, of a Constitutional amendment providing for the protection of crime victims’ rights. If such an amendment is not ratified, this Act shall be void. The proposed amendment was ratified, effective November 3, 2020, becoming Kentucky Constitution Section 26A.”

(6/13/2019). 2018 Ky. Acts ch. 19, sec. 8, provides that the amendment of this statute in that Act “shall take effect only upon the ratification, in the general election of November 6, 2018, of a Constitutional amendment providing for the protection of crime victims' rights. If such an amendment is not ratified, this Act shall be void.” On June 13, 2019, the Kentucky Supreme Court ruled that the language of the proposed amendment was not properly submitted to the voters at that election and, therefore, its ratification was void under Section 256 of the Kentucky Constitution. Consequently, the amendment of this statute in 2019 Ky. Acts ch. 19, sec. 6, was not given effect.

NOTES TO DECISIONS

1.Legislative Intent.

Section (9) of Chapter 212 of the Acts of the 1986 General Assembly, codified as KRS 421.550 , mistakenly omitted KRS 421.500(4) from the “no-liability” provisions and, therefore, KRS 421.550 must be read to include KRS 421.500(4); therefore, no liability may be predicated on a violation of KRS 421.500(4). Collins v. Hudson, 48 S.W.3d 1, 2001 Ky. LEXIS 117 ( Ky. 2001 ).

421.570. Training requirement for victim advocates — Prohibition against practicing law.

  1. For the purposes of this section and KRS 421.575 , “victim advocate” means an individual at least eighteen (18) years of age and of good moral character, who is employed by, or serves as a volunteer for, a public or private agency, organization, or official to counsel and assist crime victims as defined in KRS 421.500 , and includes a victim advocate employed by a Commonwealth’s attorney pursuant to KRS 15.760 and a victim advocate employed by a county attorney pursuant to KRS 69.350 .
  2. Each victim advocate shall complete training which shall include information concerning the difference between advocacy and the practice of law, and the appropriate intervention with crime victims, including victims of domestic violence, child physical and sexual abuse, human trafficking, and rape.
  3. A victim advocate shall not engage in the practice of law as defined in KRS 524.130 .

History. Enact. Acts 1996, ch. 189, § 4, effective July 15, 1996; 2000, ch. 317, § 7, effective July 14, 2000; 2013, ch. 25, § 19, effective June 25, 2013.

421.575. Role of victim advocates in court proceedings.

In all court proceedings, a victim advocate, upon the request of the victim, shall be allowed to accompany the victim during the proceeding to provide moral and emotional support. The victim advocate shall be allowed to confer orally and in writing with the victim in a reasonable manner. However, the victim advocate shall not provide legal advice or legal counsel to the crime victim in violation of KRS 421.570 and 524.130 .

History. Enact. Acts 1996, ch. 189, § 5, effective July 15, 1996.

421.576. Kentucky Crime Victim Bill of Rights as short title for KRS 421.500 to 421.575 — Application — Construction.

  1. In order to establish the minimum conduct of criminal justice professionals with respect to crime victims and to communicate the intent of the General Assembly that victims of crime play an integral role in the criminal justice process, KRS 421.500 to 421.575 is hereby named the Kentucky Crime Victim Bill of Rights.
  2. The rights established by KRS 421.500 to 421.575 shall apply in all felony and misdemeanor proceedings in a District or Circuit Court of the Commonwealth.
  3. Nothing in KRS 421.500 to 421.575 shall provide grounds for the victim to challenge a charging decision or a conviction, to obtain a stay of trial, or to compel a new trial. Law enforcement agencies, county attorneys, and Commonwealth’s attorneys and courts shall make every reasonable effort to ensure that victims of crime receive the benefits of the rights set out in KRS 421.500 to 421.575 .

HISTORY: Enact. Acts 1998, ch. 606, § 39, effective July 15, 1998; repealed and reenacted by 2020 ch. 101, § 1, effective November 3, 2020.

Legislative Research Commission Notes.

(11/3/2020). 2020 Ky. Acts ch. 101, sec. 8, provides that the repeal and reenactment of this statute in Section 1 of that Act “shall take effect only upon the ratification, in the general election of November 3, 2020, of a Constitutional amendment providing for the protection of crime victims’ rights. If such an amendment is not ratified, this Act shall be void. The proposed amendment was ratified, effective November 3, 2020, becoming Kentucky Constitution Section 26A.”

(6/13/2019). 2018 Ky. Acts ch. 19, sec. 8, provides that the repeal and reenactment of this statute in that Act “shall take effect only upon the ratification, in the general election of November 6, 2018, of a Constitutional amendment providing for the protection of crime victims” rights. If such an amendment is not ratified, this Act shall be void.” On June 13, 2019, the Kentucky Supreme Court ruled that the language of the proposed amendment was not properly submitted to the voters at that election and, therefore, its ratification was void under Section 256 of the Kentucky Constitution. Consequently, the repeal and reenactment of this statute in 2019 Ky. Acts ch. 19, sec. 1, was not given effect.

Rendition of Prisoners as Witnesses in Criminal Proceedings

421.600. Definitions.

As used in KRS 421.610 to 421.690 :

  1. “Penal institutions” includes a jail, prison, penitentiary, house of correction or other place of penal detention;
  2. “State” includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico and any territory of the United States;
  3. “Witness” means a person who is confined in a penal institution in any state and whose testimony is desired in another state in any criminal proceeding or investigation by a grand jury or in any criminal action before a court.

History. Enact. Acts 1976, ch. 213, § 1, June 19, 1976.

Research References and Practice Aids

Comparative Legislation.

Uniform Rendition of Prisoners as Witnesses in Criminal Proceedings Act:

Ark. Stat. 1947, §§ 43-2025 — 43-2034.

Idaho Code 1947, §§ 19-3013 — 19-3022.

Ill. Rev. Stat. 1971, ch. 38, §§ 157-21 — 157-26.

Kans. Stat. Ann., §§ 22-4207 — 22-4215.

Maine Rev. Stat. Ann., tit. 15, §§ 1461 — 1471.

Mich. Comp. Laws 1970, §§ 780.111 — 780.120.

Nebr. Rev. Stat. 1943, §§ 29-3201 — 29-3210.

N.H. Rev. Stat. 1955, §§ 613-A:1 — 613-A:11.

N.Y. McKinney’s Consol. Laws, Criminal Procedure Law, § 650.20.

Pa. Purdon’s Stat., tit. 19, §§ 625.1 — 625.12.

R.I. Gen. Laws 1956, §§ 132-15.1-1 — 12-16.1-8.

Wis. Stat. 1971, § 976.01.

421.610. Summoning prisoner in this state to testify in another state.

A judge of the state court of record in another state, which by its laws has made provision for commanding persons confined in penal institutions within that state to attend and testify in this state, may certify that there is a criminal proceeding or investigation by a grand jury or a criminal action pending in the court, that a person who is confined in a penal institution in this state may be a material witness in the proceeding, investigation or action, and that his presence will be required during a specified time. Upon presentation of the certificate to any judge having jurisdiction over the person confined, and upon notice to the Attorney General, the judge in this state shall fix a time and place for a hearing and shall make an order directed to the person having custody of the prisoner requiring that the prisoner be produced before him at the hearing.

History. Enact. Acts 1976, ch. 213, § 2, June 19, 1976.

421.620. Court order.

If at the hearing the judge determines that the witness may be material and necessary, that his attending and testifying are not adverse to the interests of this state or to the health or legal rights of the witness, that the laws of the state in which he is requested to testify will give him protection from arrest and the service of civil and criminal process because of any act committed prior to his arrival in the state under the order, and that as a practical matter the possibility is negligible that the witness may be subject to arrest or to the service of civil or criminal process in any state through which he will be required to pass, the judge shall issue an order, with a copy of the certificate attached, directing the witness to attend and testify, directing the person having custody of the witness to produce him, in the court where the criminal action is pending, or where the grand jury investigation is pending, at a time and place specified in the order, and prescribing such conditions as the judge shall determine.

History. Enact. Acts 1976, ch. 213, § 3, June 19, 1976.

421.630. Terms and conditions.

The order to the witness and to the person having custody of the witness shall provide for the return of the witness at the conclusion of his testimony, proper safeguards on his custody, and proper financial reimbursement or prepayment by the requesting jurisdiction for all expenses incurred in the production and return of the witness, and may prescribe such other conditions as the judge thinks proper or necessary. The order shall not become effective until the judge of the state requesting the witness enters an order directing compliance with the conditions prescribed.

History. Enact. Acts 1976, ch. 213, § 4, June 19, 1976.

421.640. Exceptions.

KRS 421.600 to 421.690 do not apply to any person in this state confined as mentally ill.

History. Enact. Acts 1976, ch. 213, § 5, June 19, 1976.

421.650. Prisoner from another state summoned to testify in this state.

If a person confined in a penal institution in any other state may be a material witness in a criminal action pending in a court of record or in a grand jury investigation in this state, a judge of the court may certify that there is a criminal proceeding or investigation by a grand jury or a criminal action pending in the court, that a person who is confined in a penal institution in the other state may be a material witness in the proceeding, investigation or action, and that his presence will be required during a specified time. The certificate shall be presented to a judge of a court of record in the other state having jurisdiction over the prisoner confined, and a notice shall be given to the attorney general of the state in which the prisoner is confined.

History. Enact. Acts 1976, ch. 213, § 6, June 19, 1976.

421.660. Compliance.

The judge of the court in this state may enter an order directing compliance with the terms and conditions prescribed by the judge of the state in which the witness is confined.

History. Enact. Acts 1976, ch. 213, § 7, June 19, 1976.

421.670. Exemption from arrest and service of process.

If a witness from another state comes into or passes through this state under an order directing him to attend and testify in this or another state, he shall not while in this state pursuant to the order be subject to arrest or the service of process, civil or criminal, because of any act committed prior to his arrival in this state under the order.

History. Enact. Acts 1976, ch. 213, § 8, June 19, 1976.

421.680. Uniformity of interpretation.

KRS 421.600 to 421.690 shall be so construed as to effectuate their general purpose to make uniform the law of those states which enact them.

History. Enact. Acts 1976, ch. 213, § 9, June 19, 1976.

421.690. Short title.

KRS 421.600 to 421.690 may be cited as the “Uniform Rendition of Prisoners as Witnesses in Criminal Proceedings Act.”

History. Enact. Acts 1976, ch. 213, § 10, June 19, 1976.

Penalties

421.990. Penalties.

  1. Any person who violates or enters a conspiracy to violate KRS 421.080 shall be fined not less than thirty dollars ($30) nor more than five hundred dollars ($500) or imprisoned not less than thirty (30) days nor more than six (6) months, or both.
  2. In addition to the penalty prescribed in subsection (1) of this section, a practicing attorney who violates subsection (2) of KRS 421.080 may be disbarred, whether convicted under subsection (1) or not.

History. 4866a-1 to 4866a-3.

CHAPTER 422 Evidence and Lost Records

422.010. Judicial notice of legislative acts — Official signatures. [Repealed.]

Compiler’s Notes.

This section (1624, 1625) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rule 201.

422.015. Judicial notice of comprehensive plan and regulation of planning commission.

Every court of this state shall take judicial notice of any comprehensive plan and any regulation adopted pursuant to KRS Chapter 100.

History. Enact. Acts 1986, ch. 141, § 44, effective July 15, 1986.

422.020. Copies of domestic records or documents admissible in evidence. [Repealed.]

Compiler’s Notes.

This section (519, 1626 to 1630, 4618-161) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rule 902.

422.030. Printed laws of other states and United States — Evidence when. [Repealed.]

Compiler’s Notes.

This section (1642, 1644) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rule 902.

422.040. Court records of other states and United States entitled to full faith and credit.

The records and judicial proceedings of any court of any state, attested by the clerk thereof in due form, with the seal of the court annexed if there be a seal, and certified by the judge, chief justice, or presiding magistrate of the court, shall have the same faith and credit given to them in this state as they would have at the place from which the records come. The record and judicial proceedings of any court of the United States attested by the clerk thereof, with the seal of the court annexed if there be a seal, shall have the same faith and credit given to them in this state as they would have in the courts of the United States.

History. 1635.

NOTES TO DECISIONS

1.Authentication.

The prescription of one mode of authentication necessarily excludes all other modes. Caulfield v. Bullock, 57 Ky. 494 , 1857 Ky. LEXIS 56 ( Ky. 1857 ) (decided under prior law).

Appointment of person as guardian was not authenticated as statutorily required and hence not competent evidence of such appointment, where purported certificate was merely signed by probate judge of court of other state, with seal attached. Williams v. Duncan, 92 Ky. 125 , 17 S.W. 330, 13 Ky. L. Rptr. 389 , 1891 Ky. LEXIS 134 ( Ky. 1891 ) (decided under prior law).

Contents of record of foreign court, if pertinent, must be proved by authenticated copies, and other evidence is not receivable. Jones v. Hodgkins, 233 Ky. 491 , 26 S.W.2d 19, 1930 Ky. LEXIS 591 ( Ky. 1930 ).

Proper way to prove a judgment is by an authenticated copy of it. Allen v. Commonwealth, 272 Ky. 533 , 114 S.W.2d 757, 1938 Ky. LEXIS 155 ( Ky. 1938 ).

Copy of will admitted to probate in Indiana, and certified by the clerk of the Indiana court, but which did not bear the court seal, and was neither certified by the judge nor authenticated according to act of Congress, was inadmissible. Hazelwood v. Woodward, 277 Ky. 447 , 126 S.W.2d 857, 1939 Ky. LEXIS 677 ( Ky. 1939 ).

Copy of judgment from sister state, pleaded and offered into evidence, was not properly authenticated. Callahan v. Callahan, 296 Ky. 444 , 177 S.W.2d 565, 1944 Ky. LEXIS 558 ( Ky. 1944 ).

2.—Judgment.

Record of a judgment by court of sister state was legally authenticated pursuant to federal law where it was accredited by three (3) certificates, the clerk certifying that he was clerk and that record certified was copy of original in his office; the presiding judge describing himself as such and certifying under seal to official character of clerk and that authentication was in proper form, and clerk again certifying that presiding judge was duly commissioned; the third certificate was superfluous, but did not impair authentication. Young v. Chandler, 52 Ky. 252 , 1852 Ky. LEXIS 26 ( Ky. 1852 ) (decided under prior law).

In action upon judgment of court of record of another state, it was error to rule that there was no such record where copy was introduced showing original writ and arrest, declaration, plea, trial, verdict, and judgment. Miles v. Collins, 58 Ky. 308 , 1858 Ky. LEXIS 54 ( Ky. 1858 ) (decided under prior law).

3.—Prior Convictions.

To prove conviction of accused of prior robbery, original order book of Circuit Court produced by one who testified that he was deputy clerk of that court and had custody of its records, showing that individual of same name as accused was convicted of robbery, was admissible. Allen v. Commonwealth, 272 Ky. 533 , 114 S.W.2d 757, 1938 Ky. LEXIS 155 ( Ky. 1938 ).

The record of a court of a foreign state offered to show a previous conviction under a habitual criminal indictment must be authenticated under this section. Hardin v. Commonwealth, 428 S.W.2d 224, 1968 Ky. LEXIS 716 ( Ky. 1968 ).

Use of a computer printout, for purposes of sentencing defendant, which reflected various charges for which defendant received fines, jail stays or suspended sentences and also reflected charges which were apparently dismissed was improper, as KRS 532.055(2)(a) permits introduction of prior convictions, but not prior charges subsequently dismissed and introduction of document by detective who could not testify as to authenticity, or whether it was compiled in ordinary course of business did not meet requirements of this section. Robinson v. Commonwealth, 926 S.W.2d 853, 1996 Ky. LEXIS 30 ( Ky. 1996 ).

For a Kentucky court to give full faith and credit to the judgment of another State, certification by that court is required under KRS 422.040 ; when the Commonwealth is seeking to use a prior conviction to enhance a sentence, it is, in fact, seeking full faith and credit of that prior conviction and the requirements of KRS 422.040 must be satisfied. Merriweather v. Commonwealth, 99 S.W.3d 448, 2003 Ky. LEXIS 39 ( Ky. 2003 ).

4.— —Persistent Felony Offender.

Documents proving defendant’s prior felony conviction in California were properly authenticated under KRS 422.040 , as they included a seal of the California trial court and the signature of the presiding judge of the California trial court; where the trial court had more than one location, the presiding judge did not have to be the judge at the location where defendant was convicted. Gower v. Commonwealth, 2002 Ky. App. LEXIS 2162 (Ky. Ct. App. Aug. 23, 2002).

Where documents relating to defendant’s former convictions in another state were not self authenticating under Kentucky Rules of Evidence, failed to meet the requirements of RCr 9.44, CR 44.01 or this section, and no witness authenticated the documents, evidence of the defendant’s prior convictions was insufficient to support the Persistent Felony Offender conviction. Davis v. Commonwealth, 899 S.W.2d 487, 1995 Ky. LEXIS 47 ( Ky. 1995 ), overruled in part, Merriweather v. Commonwealth, 99 S.W.3d 448, 2003 Ky. LEXIS 39 ( Ky. 2003 ).

State’s highest court does not embrace any compilation of data by any court or police agency in the absence of exemplification, as required by KRS 422.040 , or a witness who can testify that the record comports with the business record exception to the hearsay rule; the Commonwealth bears the burden of the strict proof requirements for a prior felony offender conviction and must establish the authenticity of the prior judgments of conviction. Merriweather v. Commonwealth, 99 S.W.3d 448, 2003 Ky. LEXIS 39 ( Ky. 2003 ).

Supreme Court of Kentucky overrules its decision in Davis v. Commonwealth, Ky., 899 S.W.2d 487, 1995 Ky. LEXIS 47 (1995), to the extent that it would prohibit retrial of a prior felony offender charge where there is sufficient evidence, albeit improperly admitted, to sustain the verdict. Merriweather v. Commonwealth, 99 S.W.3d 448, 2003 Ky. LEXIS 39 ( Ky. 2003 ).

5.—Depositions.

In divorced wife’s suit for alimony in Kentucky, depositions of parties taken for divorce suit in Florida and properly authenticated according to Florida and Kentucky rules and admissible in Kentucky suit if properly authenticated under stipulation of parties, were not required to be technically authenticated under this statute. Cooper v. Cooper, 248 S.W.2d 702, 1952 Ky. LEXIS 748 (Ky.), cert. denied, 344 U.S. 876, 73 S. Ct. 171, 97 L. Ed. 678, 1952 U.S. LEXIS 1577 (U.S. 1952).

6.—Licenses.

Authenticated copies of records of county court of sister state, showing that named individuals received from clerk of court license to marry and were married, were admissible without showing that original record was in another state and beyond Kentucky courts’ jurisdiction. Parkey v. Arthur, 245 Ky. 525 , 53 S.W.2d 921, 1932 Ky. LEXIS 619 ( Ky. 1932 ).

7.—Warrants.

Affidavit and search warrant to search for illicit still, bearing sealed certificate of clerk of federal court were properly authenticated and were competent evidence in like manner as originals. Moore v. Commonwealth, 200 Ky. 419 , 255 S.W. 77, 1923 Ky. LEXIS 113 ( Ky. 1923 ), overruled in part, Henson v. Commonwealth, 347 S.W.2d 546, 1961 Ky. LEXIS 374 ( Ky. 1961 ).

8.—Wills.

Even if county court should not have admitted to probate in Kentucky a will probated in another state, where the seal of the probate court of the other state was not annexed to the copy or to the certificate of probate, yet, having probate jurisdiction, it had power to determine, subject to appeal, whether authentication of will and certificate of probate were in due form. Houser v. Paducah Lands Co., 157 Ky. 252 , 162 S.W. 1113, 1914 Ky. LEXIS 260 ( Ky. 1914 ).

9.Certification.

Copy of record of court purporting to show naturalization by court of other state of prospective voter was properly rejected by election officials of this state where it was not certified in mode required by law. Caulfield v. Bullock, 57 Ky. 494 , 1857 Ky. LEXIS 56 ( Ky. 1857 ) (decided under prior law).

Transcript of judgment of court of other state, certified under act of Congress requiring courts of one state to give full faith and credit to judgment of courts of other state, was properly treated by Circuit Court as entire judgment, notwithstanding form was not that used in Kentucky. Montgomery v. Consolidated Boat Store Co., 115 Ky. 156 , 72 S.W. 816, 24 Ky. L. Rptr. 2004 , 1903 Ky. LEXIS 86 ( Ky. 1903 ).

Federal commissioner was properly permitted to offer and read in evidence certified copy of affidavit and search warrant under his seal, notwithstanding original papers were filed with his records; certified copies of proceedings of even inferior federal courts are evidence in state courts. Bowen v. Commonwealth, 199 Ky. 400 , 251 S.W. 625, 1923 Ky. LEXIS 865 ( Ky. 1923 ), overruled in part, Henson v. Commonwealth, 347 S.W.2d 546, 1961 Ky. LEXIS 374 ( Ky. 1961 ).

Introduction and reading to jury of authenticated copies of indictment and conviction by court of common pleas of Ohio, were proper, where such records were all certified as required by this section and by 28 USCS § 687 (now § 1738). Fennen v. Commonwealth, 240 Ky. 530 , 42 S.W.2d 744, 1931 Ky. LEXIS 448 ( Ky. 1931 ).

Judgment of conviction of court of sister state was not admissible in evidence, since it was not certified as required either by 28 USCS § 687 (now § 1738) relating to records and proceedings of courts of other states or 28 USCS § 688 (now § 1739) providing for authentication of records and books of sister states not appertaining to a court, or by this section, where there was no certificate by the judge that the attestation by the clerk was in due form. Allen v. Commonwealth, 272 Ky. 533 , 114 S.W.2d 757, 1938 Ky. LEXIS 155 ( Ky. 1938 ).

Where a copy of a judgment of a court of a sister state which bore the attestation of the clerk and the seal of such court was filed in a Kentucky court in a habeas corpus proceeding, but the copy of the judgment was not authenticated as required by the federal statute or this section, since it was not certified by the judge of the court which had rendered the judgment, it was not entitled to full faith and credit, as its introduction was objected to by the adverse party. Evans v. Brown, 259 S.W.2d 62, 1953 Ky. LEXIS 931 ( Ky. 1953 ).

For a court of this Commonwealth to properly give full faith and credit to the judgment of a court of another state, certification by that court is required. Davis v. Commonwealth, 899 S.W.2d 487, 1995 Ky. LEXIS 47 ( Ky. 1995 ), overruled in part, Merriweather v. Commonwealth, 99 S.W.3d 448, 2003 Ky. LEXIS 39 ( Ky. 2003 ).

10.—Divorce.

In action to vacate allegedly fraudulent marriage and for divorce, attested copy of judgment of divorce by court of sister state was incompetent where it was not certified as statutorily required and there was no identification of the person mentioned therein with the defendant in the present action. Brown Brown, 207 Ky. 133 , 268 S.W. 801, 1925 Ky. LEXIS 32 ( Ky. 1925 ).

If wife’s evidence entitled her to divorce, it was improper to dismiss her suit because of purported prior decree of divorce of court of other state, where such decree was not certified as required by this section; but court should have required county attorney to investigate and resist the divorce. Waites v. Waites, 220 Ky. 251 , 294 S.W. 1072, 1927 Ky. LEXIS 507 ( Ky. 1927 ).

11.—Guardians.

Copy of records of county court of other state showing appointment and qualification of guardian, which was certified as to correctness by clerk of that court with seal attached, but was not certified as required by federal or Kentucky statutes, did not authorize state court to consider it as evidence of facts thereon stated. Baker v. Weaks, 178 Ky. 515 , 199 S.W. 53, 1917 Ky. LEXIS 763 ( Ky. 1917 ) ( Ky. 1917 ).

12.Child Custody Decree.

Decree of court in sister state having to do with child custody was entitled to full faith and credit only to extent there had been no material change in facts and circumstances which formed basis of such decree. Callahan v. Callahan, 296 Ky. 444 , 177 S.W.2d 565, 1944 Ky. LEXIS 558 ( Ky. 1944 ).

A judgment of another state awarding custody of a child to its grandparents, who were residents of that state, for nine (9) months of the year and to its mother, who was a resident of this state, for the other three (3) months was entitled to full faith and credit, so that an action pending in this state for modification of the custody did not defeat the grandparents’ right to immediate possession of the child at the expiration of the mother’s three-month period. Burk v. Burk, 356 S.W.2d 40, 1962 Ky. LEXIS 90 ( Ky. 1962 ).

13.Transcripts.

Only way to prove court’s record was by copy of record properly certified, since without complete transcript of record it cannot be ascertained whether court had jurisdiction and what it decided; court’s record could not be proved by having witness, whose deposition was being taken, copy into it excerpts from record. Letcher's Trustee v. German Nat'l Bank, 134 Ky. 24 , 119 S.W. 236, 1909 Ky. LEXIS 351 ( Ky. 1909 ).

14.Service of Process.

Judgment recovered in other state against resident thereof after service of process by leaving copy at his residence from which he absented himself to avoid service was entitled to be received as prima facie, if not conclusive, evidence of the law and of compliance therewith. Biesenthall v. Williams, 62 Ky. 329 , 1864 Ky. LEXIS 81 ( Ky. 1864 ) (decided under prior law).

Cited in:

Gordon v. Holly Woods Acres, Inc., 328 F.2d 253, 1964 U.S. App. LEXIS 6191, 27 Ohio Op. 2d 188 (6th Cir. 1964); Houser v. Paducah Lands Co., 157 Ky. 252 , 162 S.W. 1113, 1914 Ky. LEXIS 260 ( Ky. 1914 ); Cooper v. Cooper, 248 S.W.2d 702, 1952 Ky. LEXIS 748 ( Ky. 1952 ); Dillingham v. Commonwealth, 995 S.W.2d 377, 1999 Ky. LEXIS 82 ( Ky. 1999 ).

422.050. Copies of records of other states and United States — Evidence when. [Repealed.]

Compiler’s Notes.

This section (1636) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 32, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 201 and 902.

422.060. Proof of common law of other states. [Repealed.]

Compiler’s Notes.

This section (1640) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 201 and 902.

422.070. Foreign law — Proof of. [Repealed.]

Compiler’s Notes.

This section (1641) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 201 and 902.

422.080. Foreign records and laws — Copies as evidence. [Repealed.]

Compiler’s Notes.

This section (1638) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 201 and 902.

422.081. Judicial notice of laws of other states and jurisdictions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 97, § 1) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 201 and 902.

422.082. Information of the court. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 97, § 2) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 201 and 902.

422.083. Ruling reviewable. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 97, § 3) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 201 and 902.

422.084. Evidence as to laws of other jurisdictions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 97, § 4) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 201 and 902.

422.085. Laws of foreign countries. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 97, § 5) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 201 and 902.

422.086. Interpretation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 97, § 6) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 201 and 902.

422.087. Short title. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 97, § 7) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 201 and 902.

422.090. Discharge from military or naval service may be recorded — Persons entitled to copies — Copies as evidence — Exemption from public disclosure except by certain persons or on order of court — Request to destroy copies — Reminder to ensure confidentiality.

  1. All discharge papers, including Form DD-214, given, executed or delivered to any person in the military or naval service of the United States, which evidence his discharge from the service of the United States and show the unit or part of the department to which he was attached and from which he was discharged may be recorded in the office of the county clerk of the county in which the person discharged is a resident. Upon the presentation of such discharge papers the county clerk shall record them, without charge therefor, in a suitable book which he shall provide for that purpose.
  2. A certified or attested copy of such recorded discharge is admissible evidence in all proceedings in which such discharge may come in question or in which it might be used as legal evidence of any fact.
  3. It shall be the duty of each county clerk to index alphabetically the name of each person whose discharge papers are recorded as provided in this section and to keep such index as a permanent record in such office. This index shall be a public record which shall be disclosed to any member of the public. The index shall not be bound with the book in which the discharge papers are recorded, but shall be a separate bound index.
  4. Except as provided in subsections (5) and (6) of this section, discharge papers recorded with the county clerk shall not be public records subject to public disclosure.
  5. Upon presentation of proper identification, the following individuals may be provided with a copy, a certified copy, or an attested copy of discharge papers recorded with the county clerk:
    1. The veteran named in the discharge papers;
    2. His or her spouse, widow or widower, child eighteen (18) years of age or older, parent, grandparent, or sibling eighteen (18) years of age or older;
    3. Any person authorized by the veteran;
    4. A guardian, limited guardian, conservator, or limited conservator of a disabled or partially disabled veteran named in the discharge papers;
    5. An individual with power of attorney for the veteran;
    6. A funeral director handling funeral arrangements for the veteran; and
    7. The personal representative of the veteran’s estate.
    1. Discharge papers shall be subject to discovery under the federal and Kentucky rules of criminal and civil procedure. (6) (a) Discharge papers shall be subject to discovery under the federal and Kentucky rules of criminal and civil procedure.
    2. The county clerk shall comply with any proper court order pertaining to discharge papers.
  6. Upon presentation of proper identification, a veteran may ask the county clerk to destroy that veteran’s discharge papers. Within fifteen (15) days of receiving the request, the county clerk shall destroy all copies of the discharge papers in whatever form they are being held.
  7. With regard to military discharge papers, including Form DD-214, filed before July 13, 2004, if a county clerk has commingled such discharge papers with documents unrelated to military discharge, that county clerk, in handling such discharge papers, may comply with the provisions in subsections (4), (5), and (6) of this section as well as the provision in subsection (3) of this section that the index shall not be bound with the book in which the discharge papers are recorded but shall be a separate bound index.
  8. The Kentucky Department of Veterans’ Affairs shall send a reminder of the provisions of this section to all Kentucky county clerks in January of each year to ensure the confidentiality of veterans’ discharge papers.

History. 1637a-1, 1637a-2, 1637a-4: amend. Acts 1944, ch. 32, § 1; 1978, ch. 384, § 523, effective June 17, 1978; 2004, ch. 52, § 1, effective July 13, 2004; 2010, ch. 20, § 1, effective July 15, 2010.

NOTES TO DECISIONS

1.Discharge Not in Question.

In murder prosecution, certificate of war department that man had been discharged from army because not mentally sound was inadmissible, being merely hearsay evidence and case not being one in which discharge papers might come in question. Hill v. Commonwealth, 232 Ky. 453 , 23 S.W.2d 930, 1930 Ky. LEXIS 23 ( Ky. 1930 ).

2.Recording.

A county fiscal court had no right to pay the county court clerk for services which the clerk was required by statute to perform free. Ader v. Howard, 263 S.W.2d 491, 1953 Ky. LEXIS 1152 ( Ky. 1953 ).

422.100. Notarized instruments. [Repealed.]

Compiler’s Notes.

This section (3722) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 902 and 1003.

422.105. Photographic copies of business and public records are admissible in evidence. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 30, §§ 1, 2, effective July 1, 1952) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 902 and 1003.

422.106. Citation of KRS 422.105. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 30, § 3, effective July 1, 1952) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rules 902 and 1003.

422.110. Obtaining confessions by “sweating” prohibited.

No peace officer, or other person having lawful custody of any person charged with crime, shall attempt to obtain information from the accused concerning his connection with or knowledge of crime by plying him with questions, or extort information to be used against him on his trial by threats or other wrongful means, nor shall the person having custody of the accused permit any other person to do so.

History. 1649b-1 to 1649b-3: amend. Acts 1942, ch. 141, § 2; 1990, ch. 88, §§ 78, 93, effective July 1, 1992.

Compiler’s Notes.

This section was amended by § 78 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the amendment of this section by § 78 of Acts 1990, ch. 88 became effective July 1, 1992.

NOTES TO DECISIONS

1.No Violation.

Defendant's claim of an error in the denial of his motion to suppress was rejected; detectives asked defendant the same or similar questions several times, but the evidence did not support defendant's argument that repeated questioning was designed to elicit a desired answer, and instead, it was designed to clarify his changing version of events, plus there was no indication that the detectives exerted any undue pressure from which defendant would have wanted to escape, and thus their actions did not violate the statute. Bond v. Commonwealth, 453 S.W.3d 729, 2015 Ky. LEXIS 6 ( Ky. 2015 ).

2.Violation.

Trial court erred in failing to suppress defendant's confession to officers, as the use of false statements and a phony DNA lab report as the sole basis for hours of unrecorded interrogation offended defendant's right to due process, and the weight of false evidence against defendant and the pressures exerted by interrogating officers overwhelmed defendant's conscience. Gray v. Commonwealth, 480 S.W.3d 253, 2016 Ky. LEXIS 1 ( Ky. 2016 ).

Cited in:

Roberts v. Commonwealth, 896 S.W.2d 4, 1995 Ky. LEXIS 20 ( Ky. 1995 ).

422.115. Furnishing report of theater attendance survey.

Any person employed as a private investigator or confidential investigator for the purpose of determining or attempting to determine the attendance or number of paid admissions at any motion picture theater performance in this state shall furnish to the owner or general manager of the theater checked, a report of his finding on the next succeeding day and within five (5) days after such check, a written copy of his finding or report.

History. Enact. Acts 1962, ch. 22, §§ 1, 2; 1990, ch. 88, §§ 79, 93, effective July 1, 1992.

Compiler’s Notes.

This section was amended by § 79 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the amendment of this section by § 79 of Acts 1990, ch. 88 became effective July 1, 1992.

422.120. Evidence of genuineness of handwriting — Comparison. [Repealed.]

Compiler’s Notes.

This section (1649) was repealed by § 92 of acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rule 901.

422.130. Presumption of death.

Except as provided in KRS 422.132 , if any person who has resided in this state goes from and does not return to this state for seven (7) successive years, he shall be presumed to be dead, in any case wherein his death comes in question, unless proof is made that he was alive within that time.

History. 1639: amend. Acts 2002, ch. 57, § 3, effective July 15, 2002.

NOTES TO DECISIONS

1.In General.

Unexplained absence for seven consecutive years raises presumption of death which is statutory upon lapse of such period. War Fork Land Co. v. Carr, 236 Ky. 453 , 33 S.W.2d 308, 1930 Ky. LEXIS 763 ( Ky. 1930 ).

2.Purpose.

This section creates presumption to be enforced as rule of public policy so that settlement of estates may be facilitated. Glasscock v. Weare, 192 Ky. 654 , 234 S.W. 216, 1921 Ky. LEXIS 125 ( Ky. 1921 ).

3.Application.

This section applies to every person who shall have resided in this state and who shall have departed and not returned for seven (7) successive years. Modern Woodmen of America v. Hurford, 193 Ky. 50 , 235 S.W. 24, 1921 Ky. LEXIS 201 ( Ky. 1921 ).

Despite its literal terms this section has been applied where person has been proved to be alive after leaving state. Wiggins v. New York Life Ins. Co., 2 F. Supp. 365, 1932 U.S. Dist. LEXIS 1635 (D. Ky. 1932 ).

4.Absentees.
5.—Attempts to Locate.

In action on life policy, allegation of petition that insured left his home on certain date and had not been heard from since would permit proof that inquiry was made from all who would naturally hear of or from him. Hill's Adm'x v. Metropolitan Life Ins. Co., 240 Ky. 172 , 41 S.W.2d 935, 1931 Ky. LEXIS 360 ( Ky. 1931 ).

Making inquiry from all persons who would naturally hear of or from absentee showed diligent efforts to locate him. Hill's Adm'x v. Metropolitan Life Ins. Co., 240 Ky. 172 , 41 S.W.2d 935, 1931 Ky. LEXIS 360 ( Ky. 1931 ).

Diligent efforts by beneficiary of life policy to find insured absentee during seven-year period were not made, where insured, after short stay at beneficiary’s house, left Kentucky to return to home in city in other state, and beneficiary, on one occasion only, inquired from someone from that city whether he had heard of insured, and was informed that he had not. National Life & Acci. Ins. Co. v. Pate, 246 Ky. 186 , 54 S.W.2d 663, 1932 Ky. LEXIS 729 ( Ky. 1932 ).

6.—Character and Habits.

There is a general presumption that character and habits continue to be the same. Pacific Mut. Life Ins. Co. v. Meade, 281 Ky. 36 , 134 S.W.2d 960, 1939 Ky. LEXIS 6 ( Ky. 1939 ).

7.—Heirs.

Presumption of death without descendants arose where unmarried insane man escaped from asylum about 12 years before father’s death and had not been heard from since. Hitt v. Campbell, 185 Ky. 80 , 214 S.W. 785, 1919 Ky. LEXIS 241 ( Ky. 1919 ).

8.—Service of Process.

In action involving question whether absentee should be adjudged as deceased under statutory presumption, absentee need not be proceeded against by constructive service. Riley v. Taylor's Guardian, 238 Ky. 256 , 37 S.W.2d 59, 1931 Ky. LEXIS 223 ( Ky. 1931 ).

9.—Rumors.

Fact that absentee left home broken in fortune although expressing hope of bettering condition and after first two (2) years of absence did not communicate with family would justify conclusion in suit started about 12 years later that he was dead, despite rumors that he had been seen in Confederate army within last seven (7) years. Foulks v. Rhea, 70 Ky. 568 , 1870 Ky. LEXIS 126 ( Ky. 1870 ) (decided under prior law).

10.—Death Without Heirs.

Fact that devisee with several children left state about 28 years before commencement of suit, went to Missouri, joined Mormons, and had not been since heard from by relatives or friends in this state, did not authorize conclusion that he and whole family and descendants were extinct. Gray v. McDowell, 69 Ky. 475 , 1869 Ky. LEXIS 188 ( Ky. 1869 ) (decided under prior law).

Presumption that person whose death would be presumed from seven (7) years unexplained absence, died without heirs would not obtain, without proof of other circumstances, besides mere absence, from which a presumption could fairly be drawn. Bank of Louisville v. Board of Trustees, 83 Ky. 219 , 5 S.W. 735, 7 Ky. L. Rptr. 185 ( Ky. 1885 ) (decided under prior law).

Although law authorizing presumption of death and nonexistence of heirs is not invalid when no claim has been asserted or heirs heard of for statutory period, presumption may be overcome by evidence that persons are living who are entitled to estate or have been asserting claims as heirs. Louisville School Board v. Bank of Kentucky, 86 Ky. 150 , 5 S.W. 739, 9 Ky. L. Rptr. 433 , 1887 Ky. LEXIS 133 ( Ky. 1887 ) (decided under prior law).

11.Common Law.

Common law on subject of presumption of death from seven (7) years’ absence was not repealed by this statute. Hill's Adm'x v. Metropolitan Life Ins. Co., 240 Ky. 172 , 41 S.W.2d 935, 1931 Ky. LEXIS 360 ( Ky. 1931 ).

This statute did not repeal common-law rule that after lapse of seven (7) years without intelligence concerning missing person, as shown by plaintiff, presumption of life ceased and burden of proof shifted to defendant to show such person was still alive, and plaintiff was only required to show he had inquired of persons who naturally would have heard from such person. Hill's Adm'x v. Metropolitan Life Ins. Co., 240 Ky. 172 , 41 S.W.2d 935, 1931 Ky. LEXIS 3 60 ( Ky. 1931 ). See Mutual Ben. Life Ins. Co. v. Martin, 108 Ky. 11 , 55 S.W. 694, 21 Ky. L. Rptr. 1465 , 1900 Ky. LEXIS 3 ( Ky. 1900 ).

The statute is not exclusive; presumption of death may arise in cases to which statute is inapplicable and in cases where common law raises presumption of death, as for instance, where departure is from home, rather than from state. Wiggins v. New York Life Ins. Co., 2 F. Supp. 365, 1932 U.S. Dist. LEXIS 1635 (D. Ky. 1932 ).

Notwithstanding this section, plaintiff failed to show sufficient diligence in inquiring after missing person to establish presumption of death as required by common law, since this section did not repeal common law. National Life & Acci. Ins. Co. v. Pate, 246 Ky. 186 , 54 S.W.2d 663, 1932 Ky. LEXIS 729 ( Ky. 1932 ).

Statute does not constitute entire law on subject of presumption of death arising from seven (7) years’ absence, as common law on subject was not repealed. National Life & Acci. Ins. Co. v. Pate, 246 Ky. 186 , 54 S.W.2d 663, 1932 Ky. LEXIS 729 ( Ky. 1932 ).

By English common law, since James I, the continuous absence from a person’s residence for seven (7) years without being heard from, establishes presumption of death, rebuttable by proof of counter presumptions. Wilson v. Jefferson Standard Life Ins. Co., 16 F. Supp. 200, 1936 U.S. Dist. LEXIS 1997 (D. Ky. 1936 ).

Statutory rule of evidence not being exclusive of common law, may be disregarded where action is brought under common law. Commonwealth Life Ins. Co. v. Caudill's Adm'r, 266 Ky. 581 , 99 S.W.2d 745, 1936 Ky. LEXIS 712 ( Ky. 1936 ).

Where action was brought at common law, this section was disregarded. Commonwealth Life Ins. Co. v. Caudill's Adm'r, 266 Ky. 581 , 99 S.W.2d 745, 1936 Ky. LEXIS 712 ( Ky. 1936 ).

This section is declaratory of common law. Prudential Ins. Co. v. Gatz, 182 Ky. 218 , 206 S.W. 299, 1918 Ky. LEXIS 346 ( Ky. 1918 ), overruled, Daugherty v. Rouse, 309 Ky. 794 , 219 S.W.2d 42, 1949 Ky. LEXIS 820 ( Ky. 1949 ).

12.—Proof.

Under common-law rule it is not necessary to show that person who disappeared left the state, but only that he left his residence, and has not been heard of for seven (7) years by those who, if he were living, would naturally hear from him. Hill's Adm'x v. Metropolitan Life Ins. Co., 240 Ky. 172 , 41 S.W.2d 935, 1931 Ky. LEXIS 360 ( Ky. 1931 ).

Under common-law rule, to create presumption of death it was necessary to prove that absentee had not been heard from, whereas under statute it is necessary to prove only departure from state and nonreturn for requisite period; presumption of death so arising could be overcome by evidence from opponent that absentee had been heard from during that period. Wiggins v. New York Life Ins. Co., 2 F. Supp. 365, 1932 U.S. Dist. LEXIS 1635 (D. Ky. 1932 ).

At common law, where absence of seven (7) years results in presumption of death, one who relies upon such absence must show evidence of diligence in attempt to locate absentee in order to establish inference of death. Metropolitan Life Ins. Co. v. Smith's Adm'x, 289 Ky. 531 , 159 S.W.2d 406, 1942 Ky. LEXIS 596 ( Ky. 1942 ).

This section does not constitute the entire law on the presumption of death arising from seven (7) years’ absence, since the common-law rule on the subject was not repealed. Under the common-law rule, one who relies on the unexplained absence of another for the stipulated period must not only prove that fact, but must also produce evidence of a diligent effort to find the missing person in order to justify the inference that death is the probable reason why he has not been heard from. Bechtold v. Klefken, 300 Ky. 797 , 190 S.W.2d 479, 1945 Ky. LEXIS 654 ( Ky. 1945 ).

This section does not abrogate the common-law rule that after lapse of seven (7) years without intelligence of life ceases and burden of proof devolves on other party to show that such person is alive. Metropolitan Life Ins. Co. v. Edelen's Ex'x, 308 Ky. 455 , 214 S.W.2d 769, 1948 Ky. LEXIS 956 ( Ky. 1948 ).

Evidence that missing person had left his brother’s home some 22 years ago, and had not been heard from by brother, who would naturally hear from him if he was alive, was sufficient to establish common-law presumption of death. Daugherty v. Rouse, 309 Ky. 794 , 219 S.W.2d 42, 1949 Ky. LEXIS 820 ( Ky. 1949 ).

Kentucky will follow the common-law rule, in cases where this section does not apply, that one who relies on the unexplained absence of another for seven (7) years must not only prove that fact, but must also produce evidence of a diligent effort to find the missing person, or show that he had not been heard from by those persons who naturally would hear from him if he was alive. Daugherty v. Rouse, 309 Ky. 794 , 219 S.W.2d 42, 1949 Ky. LEXIS 820 ( Ky. 1949 ).

13.Fugitives from Justice.

This section should be applied although absentee was fugitive from justice for whose apprehension reward was offered. Mutual Ben. Life Ins. Co. v. Martin, 108 Ky. 11 , 55 S.W. 694, 21 Ky. L. Rptr. 1465 , 1900 Ky. LEXIS 3 ( Ky. 1900 ).

14.Insurance.

This section expresses public policy of state, and by-law of fraternal beneficiary insurance society which provides that long continued absence of member unheard from shall not be deemed evidence of death contravenes policy and is unenforceable. Modern Woodmen of America v. Hurford, 193 Ky. 50 , 235 S.W. 24, 1921 Ky. LEXIS 201 ( Ky. 1921 ).

Where insured’s death was shown by, presumption arising from seven (7) years’ unexplained absence, recovery under policy should be for amount payable in case of death from ordinary causes and not larger amount payable in case of death from accident. Wilson v. Jefferson Standard Life Ins. Co., 16 F. Supp. 200, 1936 U.S. Dist. LEXIS 1997 (D. Ky. 1936 ).

Where, in action on life insurance policy, evidence established presumption of death following disappearance of insured on April 5, 1937, beneficiary was entitled to recover premiums paid after April 5, 1944. Metropolitan Life Ins. Co. v. Edelen's Ex'x, 308 Ky. 455 , 214 S.W.2d 769, 1948 Ky. LEXIS 956 ( Ky. 1948 ).

Parents, who collected on insurance policy by claiming their daughter was dead, took the money at the risk of having to repay it, with interest from the date on which they discovered she was alive, if their claim proved to be unfounded. Alexander Hamilton Life Ins. Co. v. Lewis, 550 S.W.2d 558, 1977 Ky. LEXIS 447 ( Ky. 1977 ).

15.Correspondence.

This section was applicable though absentee wrote wife several times after leaving state from temporary stops at various places, but was not heard from for more than seven (7) years after last letter. Mutual Ben. Life Ins. Co. v. Martin, 108 Ky. 11 , 55 S.W. 694, 21 Ky. L. Rptr. 1465 , 1900 Ky. LEXIS 3 ( Ky. 1900 ).

16.Minors.

Presumption of death arose where absentee, at age of five (5) years, was taken from state by her father, although other son remained in Kentucky, and absentee had not been heard from by any relative since leaving state 54 years before. Duncan v. Clore, 189 Ky. 132 , 224 S.W. 678 ( Ky. 1920 ).

It was unnecessary for beneficiary of life policy to prove diligent search for insured absentee, who had departed from Kentucky while a minor, lived for several years in another state, then disappeared, and had been unheard from for seven (7) years. Wiggins v. New York Life Ins. Co., 2 F. Supp. 365, 1932 U.S. Dist. LEXIS 1635 (D. Ky. 1932 ).

17.Nonresidence.

Statute did not apply so as to raise presumption of death from seven (7) years’ absence of one who did not reside in this state and did not go from this to another state, but was resident of third state and went from there to another state. Ironton Fire Brick Co. v. Tucker, 82 S.W. 241, 26 Ky. L. Rptr. 532 , 1904 Ky. LEXIS 348 (Ky. Ct. App. 1904).

Statute respecting presumption of death from seven (7) years’ absence does not apply to former resident of state who left state and acquired residence in other state, even if he had not been heard from within statutory period by relatives at former residence. Pool v. Pool, 214 Ky. 267 , 283 S.W. 111, 1926 Ky. LEXIS 333 ( Ky. 1926 ).

This section does not apply where person has gone from state and established residence elsewhere; it applies only to one who would naturally be expected to return to this state. Wiggins v. New York Life Ins. Co., 2 F. Supp. 365, 1932 U.S. Dist. LEXIS 1635 (D. Ky. 1932 ).

This statute does not recognize that a presumption arises from the departure by a person from his home in another state or from another state. Wiggins v. New York Life Ins. Co., 2 F. Supp. 365, 1932 U.S. Dist. LEXIS 1635 (D. Ky. 1932 ).

Residence of insured absentee in Kentucky was not shown, where insured had lived in city in another state for several years, and came into Kentucky to assist in burying his wife, and, after staying about a month at father-in-law’s home in Kentucky, left to return to “home” in city in other state. National Life & Acci. Ins. Co. v. Pate, 246 Ky. 186 , 54 S.W.2d 663, 1932 Ky. LEXIS 729 ( Ky. 1932 ).

This section did not apply where the absent person had never resided in Kentucky. Daugherty v. Rouse, 309 Ky. 794 , 219 S.W.2d 42, 1949 Ky. LEXIS 820 ( Ky. 1949 ).

18.Evidence.

Presumption obtained that unmarried children who left home about 28 years before and 18 years before, respectively, and had not been heard from by family, except once after leaving, were dead. Taylor v. Reisch, 49 S.W. 782, 20 Ky. L. Rptr. 1599 , 1899 Ky. LEXIS 412 (Ky. Ct. App. 1899).

Evidence raised presumption of death, where resident, not living harmoniously with wife, left state and was seen only once thereafter in another state by infant daughter more than seven (7) years before, and he was not thereafter heard from, notwithstanding discovery of oil on his farm was widely advertised, and information was sought from relatives and various police headquarters. Riley v. Taylor's Guardian, 238 Ky. 256 , 37 S.W.2d 59, 1931 Ky. LEXIS 223 ( Ky. 1931 ).

In action on life policy, evidence showed that death occurred at beginning of seven-year period, where that period had elapsed and it was shown that insured disappeared after going to gambling place at river’s edge, where fight occurred, splash was heard, and widespread search failed to locate insured, and he had not been heard from by relatives. Commonwealth Life Ins. Co. v. Caudill's Adm'r, 266 Ky. 581 , 99 S.W.2d 745, 1936 Ky. LEXIS 712 ( Ky. 1936 ).

Proof that man had been absent from his home without being heard from for more than seven (7) years, and that diligent efforts to locate him had been made by wife and insurance company, was sufficient to support judgment finding him dead, even though there was no positive proof that he had left this state. Bechtold v. Klefken, 300 Ky. 797 , 190 S.W.2d 479, 1945 Ky. LEXIS 654 ( Ky. 1945 ).

This section did not apply where it was not conclusively shown that the absentee actually left the state, even though on the day of his disappearance he left his home with avowed intention of going to city in adjoining state. Bechtold v. Klefken, 300 Ky. 797 , 190 S.W.2d 479, 1945 Ky. LEXIS 654 ( Ky. 1945 ).

19.—Burden of Proof.

This section should be applied where person leaving state is absent for seven (7) consecutive years after he is last heard from, and burden of proving he is still alive is then cast upon other party. Mutual Ben. Life Ins. Co. v. Martin, 108 Ky. 11 , 55 S.W. 694, 21 Ky. L. Rptr. 1465 , 1900 Ky. LEXIS 3 ( Ky. 1900 ). See Wilson v. Jefferson Standard Life Ins. Co., 16 F. Supp. 200, 1936 U.S. Dist. LEXIS 1997 (D. Ky. 1936 ).

Where facts are established creating presumption of death, burden of proof shifts to person attacking presumption to show that person claimed to be dead is still alive. Duncan v. Clore, 189 Ky. 132 , 224 S.W. 678 ( Ky. 1920 ).

Burden of proof that absentee died before accrual of statutory presumption of death at expiration of seven-year period rests upon those so contending. Glasscock v. Weare, 192 Ky. 654 , 234 S.W. 216, 1921 Ky. LEXIS 125 ( Ky. 1921 ).

Diligent search is unnecessary, under either statute or common law, as a prerequisite before presumption of death can arise after unexplained absence from residence of seven (7) years. Wiggins v. New York Life Ins. Co., 2 F. Supp. 365, 1932 U.S. Dist. LEXIS 1635 (D. Ky. 1932 ).

When full seven-year period had elapsed, under both common law and this section there was raised rebuttable presumption of death, burden of proof shifted, and if rebuttal evidence was circumstantial there was thus presented question of fact for jury. Columbia Life Ins. Co. v. Perry's Adm'x, 252 Ky. 793 , 68 S.W.2d 393, 1934 Ky. LEXIS 854 ( Ky. 1934 ). See War Fork Land Co. v. Carr, 236 Ky. 453 , 33 S.W.2d 308, 1930 Ky. LEXIS 763 ( Ky. 1930 ).

If evidence of absences is sufficient under statute or common law to raise presumption of death, burden of proof shifts, and circumstantial evidence in rebuttal results in question for jury. Commonwealth Life Ins. Co. v. Wood's Adm'x, 263 Ky. 361 , 92 S.W.2d 351, 1936 Ky. LEXIS 176 ( Ky. 1936 ).

20.—Death.

Presumption of death of absentee prior to expiration of seven (7) years after he had last been heard from did not arise, where absentee was 58-year-old man in good physical condition, who never wrote to relatives, and who was wanderer in habits, especially as his older brothers were still alive, notwithstanding he knew he had inherited money from relatives but did not seek to obtain it. Glasscock v. Weare, 192 Ky. 654 , 234 S.W. 216, 1921 Ky. LEXIS 125 ( Ky. 1921 ).

Proof of death within statutory period of seven (7) years need not be direct evidence, but may be shown by evidence of age, physical condition and other facts inducing more reasonable belief that he has died than that he had survived. Glasscock v. Weare, 192 Ky. 654 , 234 S.W. 216, 1921 Ky. LEXIS 125 ( Ky. 1921 ).

While presumption of death must be indulged at end of seven (7) successive years of absence, and cannot sooner be indulged, proof of death at particular time within that period may be shown by evidence. Glasscock v. Weare, 192 Ky. 654 , 234 S.W. 216, 1921 Ky. LEXIS 125 ( Ky. 1921 ).

Presumption is that individual who left state continued to live for full statutory period of seven (7) years, unless presumption is overcome by evidence. Mutual Life Ins. Co. v. Louisville Trust Co., 207 Ky. 654 , 269 S.W. 1014, 1925 Ky. LEXIS 160 ( Ky. 1925 ).

21.— —Time.

Letters received from absentee shortly after leaving state indicating intention to kill himself were some evidence of that intention, and were admissible in determining time of death, since they created reasonable probability of death at certain time. Mutual Life Ins. Co. v. Louisville Trust Co., 207 Ky. 654 , 269 S.W. 1014, 1925 Ky. LEXIS 160 ( Ky. 1925 ).

Burden of proving that death occurred at beginning of seven-year period rested upon plaintiff, and arbitrary presumption of death arising from seven (7) years’ absence did not aid her in establishing that fact. Pacific Mut. Life Ins. Co. v. Meade, 281 Ky. 36 , 134 S.W.2d 960, 1939 Ky. LEXIS 6 ( Ky. 1939 ).

Evidence held sufficient to support verdict finding that insured died at beginning of seven-year period. Pacific Mut. Life Ins. Co. v. Meade, 281 Ky. 36 , 134 S.W.2d 960, 1939 Ky. LEXIS 6 ( Ky. 1939 ).

Exposure to specific peril is of much probative value in determining time of death. Pacific Mut. Life Ins. Co. v. Meade, 281 Ky. 36 , 134 S.W.2d 960, 1939 Ky. LEXIS 6 ( Ky. 1939 ).

It is presumed that the absent person’s death occurred at the expiration of the seven-year period. Pacific Mut. Life Ins. Co. v. Meade, 281 Ky. 36 , 134 S.W.2d 960, 1939 Ky. LEXIS 6 ( Ky. 1939 ).

The presumption is against person claiming that death occurred at beginning of period, since continuance of life is presumed, but death may be established by circumstantial evidence, and collection of facts and probative significance to be accorded special circumstances may justify an inference of death on or about a certain date. Pacific Mut. Life Ins. Co. v. Meade, 281 Ky. 36 , 134 S.W.2d 960, 1939 Ky. LEXIS 6 ( Ky. 1939 ).

Where petition in action on insurance policy alleged that insured died at expiration of seven-year period, but also alleged that insured had disappeared and had not been heard from for seven (7) years, it was not necessary that plaintiff prove that death occurred at time alleged, where policy was still in force at expiration of seven-year period, and failure to prove that death occurred at time alleged did not constitute a material variance. Pacific Mut. Life Ins. Co. v. Meade, 281 Ky. 36 , 134 S.W.2d 960, 1939 Ky. LEXIS 6 ( Ky. 1939 ).

In an action on life policies, evidence that assured left state more than seven (7) years ago, then suddenly disappeared after having written letters to his wife and daughter; that he left toilet articles and personal belongings at his last known place of residence; that he was an alcoholic; that an unprecedented flood occurred at the place of his last known whereabouts shortly after he was last heard from; and that a diligent search disclosed no trace of him, was sufficient to raise the presumption of death provided for in this section, and it was a question for the jury to decide the date of assured’s death, whether at the beginning of the seven-year period, at the end of the period, or at some time in between. Jefferson Standard Life Ins. Co. v. Hewlett, 307 Ky. 171 , 210 S.W.2d 352, 1948 Ky. LEXIS 705 ( Ky. 1948 ).

22.— —Without Issue.

It cannot be presumed that children of devisee were all dead without issue merely on proof that another devisee had not heard from them since they left the state 20 years before, except that he had heard that their mother was dead. Martin v. Royse, 52 S.W. 1062, 21 Ky. L. Rptr. 775 , 1899 Ky. LEXIS 390 (Ky. Ct. App. 1899).

Even if presumption arose that certain man was dead, because of seven (7) years’ absence without being heard from, there was no showing that he died intestate and without issue, and hence that children of his deceased sister were his heirs at law and entitled to his share in land which had descended to him. Ironton Fire Brick Co. v. Tucker, 82 S.W. 241, 26 Ky. L. Rptr. 532 , 1904 Ky. LEXIS 348 (Ky. Ct. App. 1904).

23.— —Overcoming Presumption.

Proof to overcome presumption of death from seven (7) years’ unexplained absence may be direct or circumstantial, as by showing reasons for leaving, age, condition of health, motives for not returning or communicating with home. Mutual Ben. Life Ins. Co. v. Martin, 108 Ky. 11 , 55 S.W. 694, 21 Ky. L. Rptr. 1465 , 1900 Ky. LEXIS 3 ( Ky. 1900 ).

Notwithstanding absentee, who had resided in this state, departed and allegedly acquired residence in another state where he was seen, presumption of death arises after absence of seven (7) years without being heard from and can be overcome only by proof to contrary. Modern Woodmen of America v. Hurford, 193 Ky. 50 , 235 S.W. 24, 1921 Ky. LEXIS 201 ( Ky. 1921 ).

Where evidence rebutting presumption of death was positive, direct and unimpeached and to effect that absentee was seen in life within seven-year period by disinterested witnesses, such presumption was completely overcome and destroyed, and court therefore erred in not sustaining motion for directed verdict. Columbia Life Ins. Co. v. Perry's Adm'x, 252 Ky. 793 , 68 S.W.2d 393, 1934 Ky. LEXIS 854 ( Ky. 1934 ).

Where witnesses who could not have been mistaken testified that they saw absentee within seven-year period, positively and unequivocally, presumption of death was overcome. Commonwealth Life Ins. Co. v. Wood's Adm'x, 263 Ky. 361 , 92 S.W.2d 351, 1936 Ky. LEXIS 176 ( Ky. 1936 ).

Presumption of death from unexplained absence is not absolute, but is rebuttable by proof of existence of missing person, or of circumstances to sustain original presumption of continuing life. Commonwealth Life Ins. Co. v. Caudill's Adm'r, 266 Ky. 581 , 99 S.W.2d 745, 1936 Ky. LEXIS 712 ( Ky. 1936 ).

24.Returning Absentees.
25.—Rights.

One who abandoned wife and children, disappeared, and was not heard from by them for twenty years, could nevertheless, on returning, recover his share of land which had meantime descended to him from his sister, and which his wife and children, believing him dead, had sold without an adjudication that he had died. Hollowell v. Adams, 119 S.W. 1179 ( Ky. 1909 ).

Proceeding involving question whether absentee should be adjudged dead is to fix status of living persons to property formerly possessed by absentee, and absentee’s rights and remedies, if he should later appear to assert them, are not within scope of proceeding. Riley v. Taylor's Guardian, 238 Ky. 256 , 37 S.W.2d 59, 1931 Ky. LEXIS 223 ( Ky. 1931 ).

Where widow and son of landowner conveyed his land, after his absence or more than seven (7) years, landowner, upon return, could recover real estate from purchaser, and was not estopped by acceptance of portion of purchase price as loan from son, where he had no knowledge that money was part of purchase price. Kinnett v. Abrell, 275 Ky. 276 , 121 S.W.2d 699, 1938 Ky. LEXIS 420 ( Ky. 1938 ).

26.Statutory Period.
27.—Defeat.

Operation of this section may be defeated by evidence that person who disappeared from state was alive within seven (7) years next before the question arose or suit was started. Modern Woodmen of America v. Hurford, 193 Ky. 50 , 235 S.W. 24, 1921 Ky. LEXIS 201 ( Ky. 1921 ).

28.Sale of Real Estate.

Heirs of man declared dead on basis of seven (7) years’ absence were not required to execute indemnifying bond in order to sell his real estate. Bechtold v. Klefken, 300 Ky. 797 , 190 S.W.2d 479, 1945 Ky. LEXIS 654 ( Ky. 1945 ).

29.Presumption of Life.

Presumption of continuance of life prevails until overcome by more potent presumption of death. Commonwealth Life Ins. Co. v. Caudill's Adm'r, 266 Ky. 581 , 99 S.W.2d 745, 1936 Ky. LEXIS 712 ( Ky. 1936 ).

The presumption of continued existence steadily diminishes in force with lapse of time. Pacific Mut. Life Ins. Co. v. Meade, 281 Ky. 36 , 134 S.W.2d 960, 1939 Ky. LEXIS 6 ( Ky. 1939 ).

30.Pleadings.

In action to recover possession of land, allegations of petition that certain person had gone from state and had not returned thereto for seven (7) successive years created presumption that he was dead; this being a statement of the provisions of the statute. Fuson v. Bowlin, 30 S.W. 622, 17 Ky. L. Rptr. 128 (1895).

In action to enforce lien on land, involving question whether name ancestor of pleaders was dead, pleading was insufficient where it alleged that absentee had been gone, and had not been heard from by pleaders, for more than seven (7) years, but did not alleged that he was actually dead, or had departed from state and had not returned, if absent, or been heard from by other persons. Rush v. Eidson, 215 Ky. 526 , 286 S.W. 780, 1926 Ky. LEXIS 761 ( Ky. 1926 ).

In action involving question whether certain individual should be adjudged to be dead under statutory presumption, petition need not specifically allege that person is dead where necessary facts to raise that presumption are averred. Riley v. Taylor's Guardian, 238 Ky. 256 , 37 S.W.2d 59, 1931 Ky. LEXIS 223 ( Ky. 1931 ).

Cited in:

Schmitt v. Kentucky Trust Co., 429 S.W.2d 839, 1968 Ky. LEXIS 756 ( Ky. 1968 ); Alexander Hamilton Life Ins. Co. v. Lewis, 500 S.W.2d 420, 1973 Ky. LEXIS 218 ( Ky. 1973 ).

Research References and Practice Aids

Cross-References.

Bigamy under Penal Code, KRS 530.010 .

Person or heir not located in seven years presumed dead, KRS 393.050 .

Kentucky Bench & Bar.

Rouse, Absentee Reappearance: Life After Death in Kentucky, Vol. 46, No. 4, October 1982, Ky. Bench & Bar 35.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint on Life Insurance Policy, Form 194.01.

422.132. Presumption of death following catastrophic event — Declaration — Death certificate — Attorney General.

  1. A resident or nonresident of this Commonwealth who is exposed to a specific event which has been declared a disaster or emergency pursuant to KRS Chapter 39A and which is certified by the Governor as a catastrophic event that has resulted in the loss of life to persons known or unknown and whose absence following that event is not satisfactorily explained after diligent search or inquiry is presumed to be dead. The death is presumed to have occurred at the time of the catastrophic event.
  2. A District Court may declare the absent person dead, if it is satisfied that the absentee should be presumed dead under the provisions of subsection (1) of this section. A declaration with respect to a nonresident shall affect only property located within the Commonwealth.
  3. At the request of an applicant who has obtained a declaration based upon subsection (1) of this section, the court shall order the registrar of vital statistics to issue, at no cost to the applicant, a death certificate. The state registrar may indicate on the certificate that it was issued to court order in accordance with this section.
  4. The Attorney General may initiate or intervene in any proceedings or action brought pursuant to this section, including a class action law suit, on behalf of the citizens of the Commonwealth to seek a declaration of death of an absentee under subsection (1) of this section.

History. Enact. Acts 2002, ch. 57, § 1, effective July 15, 2002.

422.135. Determination by a federal agency is prima facie evidence of occurrence of death.

A determination of death made by a federal agency or military service of the United States government pursuant to Title 5, United States Code, Chapter 55, subchapter VII; Title 37, United States Code, Chapter 10, or other applicable federal law shall be prima facie evidence that the death actually occurred with respect to any proceeding in any court in the Commonwealth of Kentucky or with respect to any action of an agency of government in the Commonwealth of Kentucky.

History. Enact. Acts 1972, ch. 183, § 1, June 16, 1972.

422.140. Officer’s conduct does not estop contest of tax or indebtedness.

No conduct, statement, or representation of any officer of any county, city, or taxing district, shall serve to estop the county, city or taxing district from contesting the legality of any tax or indebtedness authorized or created by it in excess of the constitutional or legal limits relating thereto.

History. 1649c-1: amend. Acts 1990, ch. 88, §§ 80, 93, effective July 1, 1992.

Compiler’s Notes.

This section was amended by § 80 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the amendment of this section by § 80 of Acts 1990, ch. 88 became effective July 1, 1992.

422.150. Testimony taken at trial — Use at subsequent trial. [Repealed.]

Compiler’s Notes.

This section (1019a-6, 4643, 4645a-5: amend. Acts 1976 (Ex. Sess.), ch. 14, § 424, effective January 2, 1978) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rule 804.

422.160. Right to perpetuate evidence concerning land.

Persons who own any real property or any interest therein or appurtenances thereto, may by deposition perpetuate the testimony of any and all living witnesses relative to their title in the manner provided in KRS 422.170 to 422.190 .

History. 1649a-1.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Lands, § 300.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Logs and Timber, § 352.00.

Caldwell’s Kentucky Form Book, 5th Ed., Statement of Intent to Perpetuate Testimony Under KRS 422.160 et seq., Form 300.02.

Caldwell’s Kentucky Form Book, 5th Ed., Synopsis to Chapter 300 Lands, § 300.syn.

422.170. Statement to be filed by person desiring to perpetuate evidence.

  1. The party desiring to perpetuate any testimony as provided in KRS 422.160 shall file, in the circuit clerk’s office in the county where the real property is located, a statement which shall set forth that he has a title to the real property about which he desires to take testimony or evidence.
    1. If any parties who may be interested or claim to be interested in the real property are known to the party filing the statement, the statement shall be directed to them and shall give their names and addresses, if known, and if they are nonresidents of this state, the state or county in which they reside, if known. (2) (a) If any parties who may be interested or claim to be interested in the real property are known to the party filing the statement, the statement shall be directed to them and shall give their names and addresses, if known, and if they are nonresidents of this state, the state or county in which they reside, if known.
    2. If one (1) or more of the parties are unknown, the statement shall be directed to the parties known to be interested, with the statement in the caption, “to whom it may concern, and to all parties interested in the real property herein described.”
    3. If no person is known to be interested in the real property, the statement shall be directed “to any and all parties interested in following described real estate,” setting forth by description the real estate about which testimony is to be taken.
  2. The statement shall also set forth the time and place the depositions are to be taken, and the names of one (1) or more witnesses whose testimony or evidence is to be taken at the time stipulated in the statement. The statement shall be subscribed and verified by the party filing it or by his attorney, representative or agent and shall be filed before the notice provided for in KRS 422.180 shall be given.
  3. Upon the filing of the statement, the circuit clerk shall mark it “filed,” and record it in a book kept by him for that purpose, properly labeled and indexed, for which recording he shall receive a fee of one dollar ($1).
  4. If any claimant or probable claimant to whom the statement is directed is an infant, a lawyer guardian ad litem shall be designated to represent such infant by the clerk of the court. The clerk shall appoint an attorney to represent nonresident interested parties, claimants, or probable claimants. The same lawyer may be appointed to represent as attorney and guardian ad litem nonresident parties whether infants or not.

History. 1649a-1: amend. Acts 1980, ch. 188, § 290, effective July 15, 1980.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Lands, § 300.00.

Caldwell’s Kentucky Form Book, 5th Ed., Statement of Intent to Perpetuate Testimony Under KRS 422.160 et seq., Form 300.02.

422.180. Notice — Duty of guardian ad litem and attorney.

  1. The party desiring to take the deposition of any witness shall give ten (10) days’ notice in writing to all parties known to him to be interested in, or setting up or attempting to set up claim to, the real property or any interest therein. The notice shall state the time and place the depositions will be commenced to be taken, and that the same will be continued from day to day, at the same place and between the hours of 8 a.m. and 6 p.m., until the same is completed and that depositions are to be taken in behalf of the title to a certain tract of land known as  . . . . .  tract, lying on the  . . . . .  (here give the local description), in  . . . . .  County, in the State of Kentucky, and that the depositions are being taken for the purpose of perpetuation of the testimony expected to be given. The party desiring to take the deposition shall give further notice, as above recited, by having the notice published pursuant to KRS Chapter 424. Such party shall also have a like notice posted at the front door of the courthouse in the county where the real property lies at least fifteen (15) days before the taking of the depositions. Sixty (60) days’ notice shall be given to nonresidents of the time of taking of such depositions unless they waive notice through their attorney or otherwise.
  2. The guardian ad litem for an infant and the attorney for a nonresident shall, as soon as notified of his appointment, if possible, give written notice to the infant or nonresident whom he represents of the fact and nature and purpose of the proceeding, and if no person, other than himself, appears by special employment to represent those whom he was appointed to represent, he shall appear and, if necessary, cross-examine and do all necessary to protect the interest of his ward or nonresident claimant against any fraud, imposition or injury. Such guardian ad litem or attorney shall file with the clerk a written report showing what effort he made to give notice to his ward or nonresident party, and state what, if any, information he has received from them, and shall be allowed a reasonable sum for his services to be paid by the party seeking to perpetuate the evidence.

History. 1649a-1: amend. Acts 1966, ch. 239, § 228.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Lands, § 300.00.

Caldwell’s Kentucky Form Book, 5th Ed., Statement of Intent to Perpetuate Testimony Under KRS 422.160 et seq., Form 300.02.

422.190. Depositions taken in perpetuation of evidence to be recorded.

  1. When the depositions provided for in KRS 422.160 to 422.180 are completed and subscribed by the witness, they shall be certified to the circuit clerk of the county where the real property is located, by the officer before whom they were taken, in the same manner as other depositions are certified, and the officer shall take the clerk’s receipt therefor.
  2. The clerk, upon receipt of the depositions, shall immediately mark the same “lodged in my office to be recorded” and give the date of the lodgment, and record the said depositions in a book kept by him for that purpose, properly labeled and indexed. Upon application the clerk shall deliver the original of the deposition to the party on whose behalf the depositions were taken. The clerk shall be allowed one dollar ($1) for each separate deposition that he records.
  3. The original or certified copy of the deposition or the record shall be evidence in any and all courts of this state.

History. 1649a-1.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Lands, § 300.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Logs and Timber, § 352.00.

Caldwell’s Kentucky Form Book, 5th Ed., Statement of Intent to Perpetuate Testimony Under KRS 422.160 et seq., Form 300.02.

422.200. Papers in suit lost — How supplied.

When any papers in any suit pending or decided in any court have been lost, destroyed, defaced, or obliterated, and there is in existence an attested copy thereof, such copy may be filed in the office where such papers belong in lieu of the originals, and shall be prima facie evidence of the contents of the originals, and may be used as such originals could have been in all after proceedings in the suits to which the original papers belonged. The party whose rights or interests are affected by the filing of such copies shall be notified thereof, and may, upon notice to the adverse party or his attorney, move to strike such copies from the files, and the court shall, if justice requires, strike them from the files of the court.

History. 1643: amend. Acts 1976 (Ex. Sess.), ch. 14, § 425, effective January 2, 1978.

NOTES TO DECISIONS

1.Lost Records.
2.—Methods of Supplying.

There are two (2) methods of supplying lost records: first, by the court substituting an attested copy for the lost or destroyed record pursuant to this section; second, by a commissioner appointed by the court who shall take proof and supply the lost record from the proof so taken pursuant to KRS 422.210 to 422.270 . Puckett v. Morris, 181 Ky. 374 , 206 S.W. 157, 1918 Ky. LEXIS 630 ( Ky. 1918 ).

Although this section provides methods for supplying lost records, such methods are not exclusive. Smith v. Louisville Trust Co., 262 S.W.2d 479, 1953 Ky. LEXIS 1103 ( Ky. 1953 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Lost Records, § 23.00.

422.210. Lost judgment or order — How supplied.

If the record of any unexecuted judgment or final order of a court of record of this state is lost, mutilated, defaced, or destroyed, any person interested therein may, upon ten (10) days’ written notice to the adverse party, move the court in which the judgment was rendered or final order was made to reenter the same of record. Upon satisfactory proof that a judgment or final order has theretofore been entered of record and that it has been mutilated, defaced, or destroyed, and the purport thereof, the court shall reenter it of record. The reentered judgment or final order shall have the same effect as the original and official copies thereof shall be admissible as evidence for all purposes for which copies of the original would be competent. No judgment for costs shall be rendered against the defendant in the motion unless he controverts the plaintiff’s right and fails in his defense.

History. 3991.

NOTES TO DECISIONS

1.Judgments.

On motion to re-enter of record, judgment which, with other court records, had been destroyed by fire, deposition of commissioner could be read in evidence on his certificate styling himself commissioner to reinstate records of court and presumption arose that he was duly appointed to office and gave public notice of his sittings. Green v. Stevens, 63 Ky. 420 , 1 Ky. Op. 36 ( Ky. 1866 ) (decided under prior law).

2.—Destroyed.
3.— —Re-entry.

Mandamus would not lie to compel county judge to re-enter upon record of his court, judgment which had been improperly entered prior to burning of courthouse and records, the judge not having refused to act but having merely decided against re-entry of judgment. Jones v. Drake, 129 Ky. 583 , 112 S.W. 644, 1908 Ky. LEXIS 190 ( Ky. 1908 ).

4.— —Notice.

Notwithstanding notice required by this section was not formally given, court properly re-entered judgment, where original had been destroyed by fire, defendant had notice that records had been destroyed and that plaintiff had moved to supply them, and was present in court when order to substitute copy was made. Haney v. McClure, 88 Ky. 146 , 10 S.W. 427, 10 Ky. L. Rptr. 711 , 1889 Ky. LEXIS 11 ( Ky. 1889 ).

5.— —Substitute Copies.

Copy of judgment, substituted for original pursuant to this section should have same effect and be executed as if record of original had not been destroyed by fire. Haney v. McClure, 88 Ky. 146 , 10 S.W. 427, 10 Ky. L. Rptr. 711 , 1889 Ky. LEXIS 11 ( Ky. 1889 ).

6.—Bonds.

Judgment, in absence of paper of substantial import to replevin bond which had been destroyed and never paid, should have been required that substituted bond be presented to court and adjudged to be of substantial import to lost bond; it should not have permitted execution after allowing clerk to receive such paper as plaintiff might present as substantial bond. Farrow v. Orear, 63 Ky. 261 , 1865 Ky. LEXIS 61 ( Ky. 1865 ) (decided under prior law).

7.Orders.
8.—Final.

This section applies to final orders only where there is satisfactory proof that judgment or final order has theretofore been entered of record. Munsey v. Munsey, 303 S.W.2d 257, 1957 Ky. LEXIS 235 ( Ky. 1957 ).

9.—Lost.
10.— —Re-entry.

This section provides only for re-entry of orders which have been lost after an original entry. Munsey v. Munsey, 303 S.W.2d 257, 1957 Ky. LEXIS 235 ( Ky. 1957 ).

11.—Unrecorded.
12.— —Evidence.

In collateral proceeding neither order of county court approving bond and releasing sureties which was not entered of record nor purport of such order may be established by parol evidence, as against contention that order might be established without following procedure prescribed by this section. Commonwealth use of Patrick v. Williams, 252 Ky. 133 , 65 S.W.2d 1012, 1933 Ky. LEXIS 984 ( Ky. 1933 ).

Cited in:

Crain v. Crain, 268 Ky. 262 , 104 S.W.2d 992, 1937 Ky. LEXIS 452 ( Ky. 1937 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Lost Records, § 23.00.

422.220. Bond with force of judgment, lost — How supplied.

If a bond having the force and effect of a judgment, is lost, destroyed, mutilated, or defaced, any person interested therein may, upon ten (10) days’ written notice to the adverse party, move the court in which the bond was on file to award execution thereon. Upon satisfactory proof that such bond has existed, that it has been lost, destroyed, mutilated, or defaced, the purport thereof, and that it remains undischarged, the court shall award execution thereon, endorsed as though execution were issued on the bond, if in existence. No judgment for costs shall be rendered against the defendant in the motion, unless he controverts the plaintiff’s right to an execution and fails in his defense.

History. 3992.

NOTES TO DECISIONS

1.Injunctions.

Injunction against enforcement of judgment and collection of sale bond was not available to obligees, whose execution of bond was shown, notwithstanding it had been misplaced and typed copy used as correct copy, although obligors could have had copy supplied pursuant to KRS 422.210 and this section. Reed v. Taylor Motor Sales Co., 250 Ky. 259 , 62 S.W.2d 788, 1933 Ky. LEXIS 670 ( Ky. 1933 ).

2.Evidence.

Evidence consisting of the testimony of disinterested witnesses which is uncontradicted, not discredited by other evidence, within the witnesses’ own knowledge, and is not improbable, and the undenied testimony of an interested witness, is “satisfactory” within the meaning of this section. Perfection Hardwood Flooring Co. v. Bowling, 300 S.W.2d 550, 1957 Ky. LEXIS 454 ( Ky. 1957 ).

Evidence of witnesses, attorneys, and other parties in prior lawsuit involving bond, testimony of person who admitted executing bond, evidence that carbon copy of bond was found, and identification of handwriting on such carbon copy as that of party attempting to recover on bond was sufficient to establish that lost or destroyed bond had existed. Perfection Hardwood Flooring Co. v. Bowling, 300 S.W.2d 550, 1957 Ky. LEXIS 454 ( Ky. 1957 ).

422.230. Order of court or bond filed therein — How supplied when lost.

If an order of a court, appointing an administrator, guardian or any person to any place, station, or trust or, if the bond executed by any such person, or by an officer, is destroyed, obliterated, or lost, the court shall, by the appropriate proceeding, due notice thereof being given, supply the record, and require such person to execute a new bond, with good and sufficient sureties. If the person fails to execute a new bond when so required the court shall enter an order vacating his office or station.

History. 3993: amend. Acts 1976 (Ex. Sess.), ch. 14, § 426, effective January 2, 1978.

NOTES TO DECISIONS

1.Testimony of County Judge.

Without being required to supply copy under this section, the recovery could be had upon guardian’s bond, which had been lost, where county judge testified that he took bond, copied it into county bond book, and further testified to its contents and signatures of sureties. Upchurch v. Helton, 205 Ky. 192 , 265 S.W. 770, 1924 Ky. LEXIS 87 ( Ky. 192 4).

422.240. Commissioner to supply records of court.

  1. If the records or papers of any court are lost, destroyed, defaced, or obliterated, the court shall appoint a commissioner, who shall have power and authority to fix on a convenient place to meet for the purpose of hearing evidence in regard to the lost records or papers, giving reasonable public notice thereof.
  2. The commissioner shall be paid a reasonable compensation out of the county treasury and shall not remain in office longer than one (1) year.
  3. The commissioner may, at the instance of any person, issue a summons and cause the attendance of witnesses, and take evidence, in writing, of such witnesses, relative to any record or paper so destroyed, defaced, or obliterated. The deposition shall be legal evidence, and shall be returned to the clerk of the court and safely kept by such clerk. Before any proof is taken, the party offering it must make and file with the commissioner an affidavit that there is no attested copy of the record or papers in existence known to him. If the affidavit is not made, no testimony taken shall be evidence.

History. 3994 to 3996.

NOTES TO DECISIONS

1.Application.

This section applied only to cases where records were lost or destroyed that affected entire public, not to loss of single paper that could be supplied by notice to adverse party and proof taken. Harlan's Heirs v. Arthur, 3 S.W. 151, 8 Ky. L. Rptr. 697 (Ky. Ct. App. 1887).

2.Court Records.

Where, after remand of cause to court below, pleadings and other papers were removed from clerk’s office and lost, court properly permitted filing of copy of transcript of record on file in Court of Appeals to replace lost papers. Oppenheimer v. Riley, 69 Ky. 118 , 1869 Ky. LEXIS 115 ( Ky. 1869 ) (decided under prior law).

Where officer’s return upon an execution never reached clerk’s office, it was not a court record and could not be supplied by commissioner under statutory provisions. Harlan's Heirs v. Arthur, 3 S.W. 151, 8 Ky. L. Rptr. 697 (Ky. Ct. App. 1887).

Where, in undertaking to supply records upon which judgment in suit depended after their destruction by fire in courthouse, commissioner was appointed, took proof and filed report but did not supply lost records, Court of Appeals could not say whether pleadings supported judgment, because there were no pleadings, but merely commissioner’s general statement of what pleadings contained. Puckett v. Morris, 181 Ky. 374 , 206 S.W. 157, 1918 Ky. LEXIS 630 ( Ky. 1918 ).

3.—Substitutions.

Where no affidavit that no attested copy of lost papers existed known to party seeking substitution of papers was filed, and testimony of party’s attorney was not taken, and clerk of court merely stated his opinion that copies of petition and judgment were correct, court lacked authority to substitute papers accompanying commissioner’s report for originals. Haney v. McClure, 88 Ky. 146 , 10 S.W. 427, 10 Ky. L. Rptr. 711 , 1889 Ky. LEXIS 11 ( Ky. 1889 ).

Evidence taken by commissioner as regards substitution of papers for lost records in case is not to be used in lieu of lost records; testimony is merely evidence upon which court acts in making substitution for lost records; court order is essential to effect substitution. Mayo v. Emery, 103 Ky. 637 , 45 S.W. 1048, 20 Ky. L. Rptr. 638 , 1898 Ky. LEXIS 111 ( Ky. 1898 ).

Fact that judgment had been rendered and that case was not on docket did not prevent court from making order appointing commissioner to take testimony as regards substitution of papers for lost ones. Mayo v. Emery, 103 Ky. 637 , 45 S.W. 1048, 20 Ky. L. Rptr. 638 , 1898 Ky. LEXIS 111 ( Ky. 1898 ).

This section contemplates substitution by order of court of formal copy for pleading which has been lost or destroyed. Puckett v. Morris, 181 Ky. 374 , 206 S.W. 157, 1918 Ky. LEXIS 630 ( Ky. 1918 ).

When petition in suit is lost or destroyed and a new one is substituted for it, substituted petition becomes only petition in case and court will give judgment as if it were the original pleading. Puckett v. Morris, 181 Ky. 374 , 206 S.W. 157, 1918 Ky. LEXIS 630 ( Ky. 1918 ).

4.— —Depositions.

Deposition taken by commissioner in proceeding to supply lost record could not be read in evidence as substituted record. Morrison v. Price, 130 Ky. 139 , 112 S.W. 1090, 1908 Ky. LEXIS 235 ( Ky. 1908 ).

Neither depositions nor narrative report of commissioner appointed pursuant to this section to supply records destroyed in courthouse fire, although containing general statement as to what petition in suit contained, could be substituted for lost petition. Puckett v. Morris, 181 Ky. 374 , 206 S.W. 157, 1918 Ky. LEXIS 630 ( Ky. 1918 ).

5.— —Without Commissioner.

It was not error for court trying case to permit plaintiff to substitute copy of petition for one which had been lost, without reference to commissioner, there being no objection that substituted petition differed from original. May v. May, 150 Ky. 522 , 150 S.W. 685, 1912 Ky. LEXIS 944 ( Ky. 1912 ).

6.—Evidence.
7.— —Parol.

Testimony of county judge, county attorney and others that county judge had made and filed order admitting accused to bail in certain sum and that order had been lost was admissible, law respecting method of supplying lost records not being prohibitory of oral evidence. Bullock v. Commonwealth, 96 Ky. 537 , 29 S.W. 341, 16 Ky. L. Rptr. 621 , 1895 Ky. LEXIS 114 ( Ky. 1895 ).

Testimony of witness and police judge as to the contents of a record of judgment that had been lost should have been received, since contents of record which has been lost and not supplied may be shown by parol evidence. Morrison v. Price, 130 Ky. 139 , 112 S.W. 1090, 1908 Ky. LEXIS 235 ( Ky. 1908 ).

Proof of lost records and their contents could be established by parol evidence. Commonwealth ex rel. Love v. Reynolds, 284 Ky. 809 , 146 S.W.2d 41, 1940 Ky. LEXIS 585 ( Ky. 1940 ).

8.—Restoration.

There is both a statutory and common-law mode of restoring lost or destroyed records: (1) a commissioner may be appointed by the court whose records have been lost or destroyed, who shall take proof and report; (2) court, upon satisfactory proof, may substitute a paper for the one lost or destroyed. Commonwealth v. Keger, 62 Ky. 240 , 1864 Ky. LEXIS 41 ( Ky. 1864 ) (decided under prior law).

Circuit court has inherent power to supply, on proof, its own lost or defaced records, and, since mode of appointment of commissioner to take and report evidence pursuant to law is not prescribed, petition giving all facts is not unlawful or inappropriate mode of proceeding. Deshong v. Cain, 62 Ky. 309 , 1864 Ky. LEXIS 72 ( Ky. 1864 ) (decided under prior law).

Court whose records were destroyed by fire could appoint commissioner, who was authorized to hold hearings on public notice and take evidence in writing as to record destroyed, which should be legal evidence and returned to court. Green v. Stevens, 63 Ky. 420 , 1 Ky. Op. 36 ( Ky. 1866 ) (decided under prior law).

When lost pleading in case was promptly and correctly supplied under eye of court trying case, it was unnecessary to continue trial to future day. Gregory v. Meister, 141 Ky. 54 , 132 S.W. 399, 1910 Ky. LEXIS 427 ( Ky. 1910 ).

9.— —Methods.

This section pertaining to lost records is cumulative; judge, whether common law or chancellor, may supply lost records of his court either by motion or petition. Bush v. Lisle, 86 Ky. 504 , 6 S.W. 330, 9 Ky. L. Rptr. 667 , 1888 Ky. LEXIS 1 (Ky. Ct. App. 1888).

When record has been supplied by order of court, judgment of court is conclusive that all preliminary steps were properly taken. Morrison v. Price, 130 Ky. 139 , 112 S.W. 1090, 1908 Ky. LEXIS 235 ( Ky. 1908 ).

There are two modes of supplying lost records: first by court substituting an attested copy for the lost or destroyed record pursuant to KRS 422.200 ; and, second, by a commissioner appointed by the court who shall take proof and supply the lost record from the proof so taken pursuant to this section. Puckett v. Morris, 181 Ky. 374 , 206 S.W. 157, 1918 Ky. LEXIS 630 ( Ky. 1918 ).

That lost records of case were not supplied as prescribed in this section was not objectionable, where, after case was prepared for trial, record was lost, and court appointed commissioner to supply copy, but parties without objection submitted pleadings and parts of record and retook depositions. Moore v. Shepherd, 189 Ky. 593 , 225 S.W. 484, 1920 Ky. LEXIS 479 ( Ky. 1920 ).

While this section provides methods for supplying lost records, such methods are not exclusive. Smith v. Louisville Trust Co., 262 S.W.2d 479, 1953 Ky. LEXIS 1103 ( Ky. 1953 ).

10.— — —Appeal.

Judgment in proceeding to supply lost record is final order, and proof taken before commissioner would be material only on appeal from that order. Turner v. Hamlin, 152 Ky. 469 , 153 S.W. 778, 1913 Ky. LEXIS 695 ( Ky. 1913 ).

On appeal, Court of Appeals will presume that commissioner proceeded properly to supply lost record, where original judgment contained copy of supplied record and of court order supplying it, as against contention that it was not shown that commissioner took proof or that no attested copy of lost paper existed. Turner v. Hamlin, 152 Ky. 469 , 153 S.W. 778, 1913 Ky. LEXIS 695 ( Ky. 1913 ).

11.Petitions.

Copy of petition in action was properly permitted to be substituted for original which had been destroyed by fire in clerk’s office, where court before which case was called for trial was satisfied by proper evidence of substantial correspondence between substituted petition and original; accidental destruction of petition should not abate action after process served. Suggett v. Bank of Kentucky, 38 Ky. 201 , 1839 Ky. LEXIS 46 ( Ky. 1839 ) (decided under prior law).

Research References and Practice Aids

Cross-References.

Maintenance of records by court clerks, KRS 30A.080 .

422.250. Reentering instrument — Effect of.

  1. If any record book, containing judgments, decrees, orders, executions, or proceedings of a court, is lost, destroyed, or becomes illegible, and can be again entered correctly by means of any writing, the court may order its clerk to have the matter reentered. The reentered record, when approved by the court, shall have the same effect as the original.
  2. If any record book of written instruments, or any such instrument, filed in any clerk’s office is lost, destroyed, or becomes illegible, the clerk shall upon the production of any original paper which was recorded in the lost book, or an attested copy from the record, or of anything else in said book, or of any paper so filed, on the request of the person interested, rerecord the instrument and shall certify on the record whether it was recorded from the original or a copy, and how it was authenticated. Such record shall be prima facie evidence.

History. 3997, 3998.

NOTES TO DECISIONS

1.Rerecording.
2.—Delay.

Where conveyance from grantor was recorded, but records were subsequently destroyed by fire, and grantee did not rerecord deed or have lost record supplied for 37 years, one who acquired title through another vendee from same grantor had better title, where other vendee had rerecorded his deed after records were destroyed. Lantzy v. Swango, 216 Ky. 547 , 288 S.W. 315, 1926 Ky. LEXIS 969 ( Ky. 1926 ).

Where vendee has recorded his deed, but record has been destroyed by fire, his failure to rerecord his deed for an unreasonable time or to have the lost record supplied by the statutory method is such negligence that an innocent purchaser for value during the time it was unrecorded will be protected. Lantzy v. Swango, 216 Ky. 547 , 288 S.W. 315, 1926 Ky. LEXIS 969 ( Ky. 1926 ).

3.Purchasers.
4.—Innocent.

Innocent purchaser would not be disturbed, where mortgage was executed and recorded but records destroyed about five (5) years before purchaser acquired title, and mortgage had not been restored as statutorily prescribed. Tolle v. Alley, 24 S.W. 113, 15 Ky. L. Rptr. 529 (1893).

Even if this statute protects innocent purchasers from grantor who had theretofore granted land to grantee, who, after records were destroyed by fire, had negligently failed to rerecord deed or have it supplied as lost record, it would not protect purchaser from persons who had only life estate. Stevens v. Glass, 60 S.W. 369, 22 Ky. L. Rptr. 1279 (1901).

Innocent purchaser for value from grantor would not be disturbed, where earlier grantee from grantor recorded his deed many years before, but after records in county clerk’s office were destroyed by fire had neglected for 25 years either to rerecord his deed or, if lost, have it supplied pursuant to statute. Kentucky Coal & Timber Development Co. v. Conley, 184 Ky. 274 , 211 S.W. 734, 1919 Ky. LEXIS 49 ( Ky. 1919 ).

5.—Intervening.

Since conveyance of right, title and interest of vendor carries with it only such interest as vendor had, it would not support assertion of innocent purchaser so as to protect intervening purchaser against prior vendee who recorded deed, but after records were destroyed, failed for unreasonable time to rerecord or have record of deed supplied as statutorily prescribed. Swango v. Kentucky Coal & Timber Development Co., 200 Ky. 522 , 255 S.W. 114, 1923 Ky. LEXIS 131 ( Ky. 1923 ).

422.260. Copy of record impounded in court may be recorded to supply lost record.

If any written instrument, required or authorized by law to be recorded, has been recorded, and the book containing it has been lost, destroyed, mutilated, or defaced, and an attested copy thereof is impounded in any court of this state, or any Circuit Court of the United States, or the Supreme Court thereof, any person may procure a copy of such copy, attested by the officer having the custody thereof, and produce it to the clerk in whose office the originals were recorded. The clerk shall rerecord the instrument and certify that it was recorded from a copy of a copy, and such record shall be prima facie evidence. The clerk shall also retain and file the copy from which the record was made.

History. 3999.

422.270. Action to supply lost record.

When any written instrument, authorized by law to be recorded, has been so recorded, and the book containing it has been lost, destroyed, mutilated or defaced, and there is not in existence a copy of such writing known to the person claiming under it, such person may institute a suit in equity, in the county where such instrument was recorded, against the grantors or obligors in the writing, or his heirs or personal representatives, setting forth the fact of the existence of such writing, and the destruction of the record. Upon hearing, the court may render judgment that the defendants make and execute another writing in lieu of the original, of the same tenor and effect. Upon the failure of the defendants to execute a new writing within a reasonable time, the court shall cause the same to be executed by a commissioner, which shall vest in plaintiff all the rights vested in him by the original writing. If the recorded instrument be a conveyance for land, the plaintiff may make defendants any or all who have had title to the land for fifteen (15) years preceding the institution of the suit. No judgment for costs shall be rendered against the defendants unless they make defense and fail therein, except that, if they fail to convey or execute a new writing when adjudged to do so by the court, they shall, if adults, pay the cost of making the writing by a commissioner.

History. 4000.

NOTES TO DECISIONS

1.In General.

Even without statute for supplying instruments which do not constitute public records within KRS 422.210 to 422.270 , equity will afford relief by supplying unrecorded deed or other instrument and simultaneously afford relief incidental thereto. Mullens v. McCoy, 170 Ky. 547 , 186 S.W. 137, 1916 Ky. LEXIS 72 ( Ky. 1916 ).

2.Limitations on Action.

Statutes of limitation as to actions to recover real property are applicable by analogy to action to supply lost deed after its recordation and subsequent destruction, action accrued upon destruction, and time commenced to run then, or at least from time when destruction was, or could have been discovered, and period in no event can exceed 30 years. Brandenburg v. McGuire, 105 Ky. 10 , 44 S.W. 96, 19 Ky. L. Rptr. 1598 , 1898 Ky. LEXIS 239 ( Ky. 1898 ).

3.Res Judicata.

Where occupants of land brought action to quiet title alleging that their grantor, who was life tenant under will, had received deed from remainderman before conveying to them, but that deed had been torn out of record books, judgment against remainderman was res judicata in subsequent ejectment action, as against contention that occupants’ only remedy was to proceed under this section. Graves v. Dillingham, 277 Ky. 508 , 126 S.W.2d 1106, 1939 Ky. LEXIS 703 ( Ky. 1939 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Lost Records, § 23.00.

Petrilli, Kentucky Family Law, Records and Proof of Ceremonial Marriage, § 9.2.

422.280. Liability for damage to or loss of boarded horses — Negligence not presumed.

  1. As used in this section:
    1. The term “boarder” means one who holds out his land, barn or related facilities to others for compensation, by which is meant compensation in any manner, whether money or otherwise, for the custody, care, breeding or selling of horses;
    2. The term “owner” means one who has contracted with the boarder for the custody, care, breeding or selling of horses.
  2. The owner shall be liable for damages to or loss of the horse while in the custody of the boarder except for that damage or loss due to the negligence of the boarder, his agent or employees. Evidence that the owner delivered horses to the boarder and that the horses were damaged or lost while in the care and custody of the boarder shall not be sufficient to create a presumption of negligence on the part of the boarder, or a prima facie case in favor of the owner.

History. Enact. Acts 1972, ch. 283, § 1.

Research References and Practice Aids

Kentucky Bench & Bar.

Miller & Woodford, Equine Law: Litigating the Horse Transportation Claim., Vol. 71, No. 3, May 2007, Ky. Bench & Bar 15.

422.285. Person convicted of certain offenses may request DNA testing — Right to counsel — Deposit — Court orders — Cost — Access to reports — Preservation of evidence — Dismissal — Hearing when results favorable to petitioner.

    1. Except as provided in paragraph (b) of this subsection, a person who was convicted of a capital offense, a Class A felony, a Class B felony, or any offense designated a violent offense under KRS 439.3401 and who meets the requirements of this section may at any time request the forensic deoxyribonucleic acid (DNA) testing and analysis of any evidence that is in the possession or control of the court or Commonwealth, that is related to the investigation or prosecution that resulted in the judgment of conviction and that may contain biological evidence. (1) (a) Except as provided in paragraph (b) of this subsection, a person who was convicted of a capital offense, a Class A felony, a Class B felony, or any offense designated a violent offense under KRS 439.3401 and who meets the requirements of this section may at any time request the forensic deoxyribonucleic acid (DNA) testing and analysis of any evidence that is in the possession or control of the court or Commonwealth, that is related to the investigation or prosecution that resulted in the judgment of conviction and that may contain biological evidence.
    2. This subsection shall not apply to offenses under KRS Chapter 218A, unless the offense was accompanied by another offense outside of that chapter for which testing is authorized by paragraph (a) of this subsection.
  1. Upon receipt of a request under this section accompanied by a supporting affidavit containing sufficient factual averments to support the request from a person who meets the requirements of subsection (5)(f) of this section at the time the request is made for an offense to which the DNA relates, the court shall:
    1. If the petitioner is not represented by counsel, appoint the Department of Public Advocacy to represent the petitioner for purposes of the request, pursuant to KRS 31.110(2)(c); or
    2. If the petitioner is represented by counsel or waives appointment of counsel in writing or if the Department of Public Advocacy has previously withdrawn from representation of the petitioner for purposes of the request, require the petitioner to deposit an amount certain with the court sufficient to cover the reasonable costs of the testing being requested.
  2. Counsel representing the petitioner shall be provided a reasonable opportunity to investigate the petitioner’s request and shall be permitted to supplement the request. Pursuant to KRS 31.110(2)(c), the petitioner shall have no further right to counsel provided by the Department of Public Advocacy on the matter if counsel determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his or her own expense. If the Department of Public Advocacy moves to withdraw as counsel for petitioner and the court grants the motion, the court shall proceed as directed under subsection (2)(b) of this section.
  3. Upon receipt of the deposit required under subsection (2)(b) of this section or a motion from counsel provided by the Department of Public Advocacy to proceed, the court shall provide notice to the prosecutor and an opportunity to respond to the petitioner’s request.
  4. After due consideration of the request and any supplements and responses thereto, the court shall order DNA testing and analysis if the court finds that all of the following apply:
    1. A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing and analysis;
    2. The evidence is still in existence and is in a condition that allows DNA testing and analysis to be conducted;
    3. The evidence was not previously subjected to DNA testing and analysis or was not subjected to the testing and analysis that is now requested and may resolve an issue not previously resolved by the previous testing and analysis;
    4. Except for a petitioner sentenced to death, the petitioner was convicted of the offense after a trial or after entering an Alford plea;
    5. Except for a petitioner sentenced to death, the testing is not sought for touch DNA, meaning casual or limited contact DNA; and
    6. The petitioner is still incarcerated or on probation, parole, or other form of correctional supervision, monitoring, or registration for the offense to which the DNA relates.
  5. After due consideration of the request and any supplements and responses thereto, the court may order DNA testing and analysis if the court finds that all of the following apply:
    1. A reasonable probability exists that either:
      1. The petitioner’s verdict or sentence would have been more favorable if the results of DNA testing and analysis had been available at the trial leading to the judgment of conviction; or
      2. DNA testing and analysis will produce exculpatory evidence;
    2. The evidence is still in existence and is in a condition that allows DNA testing and analysis to be conducted;
    3. The evidence was not previously subject to DNA testing and analysis or was not subjected to the testing and analysis that is now requested and that may resolve an issue not previously resolved by the previous testing and analysis;
    4. Except for a petitioner sentenced to death, the petitioner was convicted of the offense after a trial or after entering an Alford plea;
    5. Except for a petitioner sentenced to death, the testing is not sought for touch DNA, meaning casual or limited contact DNA; and
    6. The petitioner is still incarcerated or on probation, parole, or other form of correctional supervision, monitoring, or registration for the offense to which the DNA relates.
  6. The provisions of KRS 17.176 to the contrary notwithstanding, the petitioner shall pay the costs of all testing and analysis ordered under this section. If the court determines that the petitioner is a needy person using the standards set out in KRS 31.120 and the Department of Public Advocacy so moves, the court shall treat the costs of testing and analysis as a direct expense of the defense for the purposes of authorizing payment under KRS 31.185 .
  7. If the prosecutor or defense counsel has previously subjected evidence to DNA testing and analysis, the court shall order the prosecutor or defense counsel to provide all the parties and the court with access to the laboratory reports that were prepared in connection with the testing and analysis, including underlying data and laboratory notes. If the court orders DNA testing and analysis pursuant to this section, the court shall order the production of any laboratory reports that are prepared in connection with the testing and analysis and may order the production of any underlying data and laboratory notes.
  8. If a petition is filed pursuant to this section, the court shall order the state to preserve during the pendency of the proceeding all evidence in the state’s possession or control that could be subjected to DNA testing and analysis. The state shall prepare an inventory of the evidence and shall submit a copy of the inventory to the defense and the court. If the evidence is intentionally destroyed after the court orders its preservation, the court may impose appropriate sanctions, including criminal contempt.
  9. The court may make any other orders that the court deems appropriate, including designating any of the following:
    1. The preservation of some of the sample for replicating the testing and analysis; and
    2. Elimination samples from third parties.
  10. If the results of the DNA testing and analysis are not favorable to the petitioner, the court shall dismiss the petition. The court may make further orders as it deems appropriate, including any of the following:
    1. Notifying the Department of Corrections and the Parole Board;
    2. Requesting that the petitioner’s sample be added to the Department of Kentucky State Police database; and
    3. Providing notification to the victim or family of the victim.
  11. Notwithstanding any other provision of law that would bar a hearing as untimely, if the results of the DNA testing and analysis are favorable to the petitioner, the court shall order a hearing and make any further orders that are required pursuant to this section or the Kentucky Rules of Criminal Procedure.

HISTORY: Enact. Acts 2002, ch. 154, § 1, effective July 15, 2002; 2007, ch. 85, § 307, effective June 26, 2007; 2013, ch. 77, § 1, effective June 25, 2013; 2017 ch. 167, § 17, effective June 29, 2017.

Legislative Research Commission Notes.

(7/15/2002). Under the authority of KRS 7.136 , the Reviser of Statutes has corrected a manifest clerical or typographical error in the second sentence of subsection (5) of this section as enacted in 2002 Ky. Acts ch. 154, sec. 1, by inserting “and” after the second appearance of “testing and analysis.”

NOTES TO DECISIONS

1.Due Process.

States have substantial flexibility in deciding what procedures are needed in the context of postconviction relief, and a state may properly limit the available procedures, which will be found to violate due process only if they are fundamentally inadequate to vindicate the substantive rights provided. The procedures established in KRS 422.285 are sufficient to vindicate any substantive right to DNA testing that might also be created by the statute, as the procedures are similar to those provided for DNA evidence by federal law and the law of other States, and they are not inconsistent with the traditions and conscience of our people or with any recognized principle of fundamental fairness; as such, due process requires no additional rights beyond what is already provided in KRS 422.285 and the various postconviction procedures found in Kentucky law. Bowling v. Commonwealth, 357 S.W.3d 462, 2010 Ky. LEXIS 313 ( Ky. 2010 ).

There is no substantive due process right to DNA testing, nor is there a procedural due process right to anything beyond what KRS 422.285 currently provides. Bowling v. Commonwealth, 357 S.W.3d 462, 2010 Ky. LEXIS 313 ( Ky. 2010 ).

2.Hearings.

Because defendant could not establish that even if defendant had both anal swab slides available for DNA testing under defendant’s preferred method, that defendant would have been able to establish a reasonable probability of exculpatory evidence, the trial court was not required to hold a hearing and properly dismissed defendant’s KRS 422.285 petition. Taylor v. Commonwealth, 291 S.W.3d 692, 2009 Ky. LEXIS 147 ( Ky. 2009 ).

Where the trial court specifically referred to hairs when it denied DNA testing, without mentioning semen, the reviewing court was uncertain whether the trial court considered the semen evidence and remanded for a hearing. Wilson v. Commonwealth, 381 S.W.3d 180, 2012 Ky. LEXIS 64 ( Ky. 2012 ).

3.DNA Testing.

Evidence must not have been previously tested for DNA or, if it was tested, the movant must show that the type of testing now being requested is qualitatively different and may resolve an issue not previously resolved by the previous testing and analysis. KRS 422.285(2)(c) and (3)(c). By this language, the legislature made clear its intent not to have successive, redundant DNA testing requests and placed a high burden on a movant to establish that an entirely new issue is involved. Otherwise, DNA testing, sometimes many years after trial, is limited to the one bite of the apple rule. Bowling v. Commonwealth, 357 S.W.3d 462, 2010 Ky. LEXIS 313 ( Ky. 2010 ).

Where there is enough other incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent. The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. Bowling v. Commonwealth, 357 S.W.3d 462, 2010 Ky. LEXIS 313 ( Ky. 2010 ).

Testing under KRS 422.285 requires that the evidence is still in existence and is in a condition that allows DNA testing and analysis to be conducted; if the evidence does not exist, then it obviously cannot be tested, and KRS 422.285 only gives the right to a test, not to reversal of a conviction simply where testing is impossible. Thus, as a precondition to ordering testing under KRS 422.285, the trial court must also find that the evidence requested to be tested exists in a condition that will allow proper DNA testing; if it is not, then obviously the inquiry is at an end. Moore v. Commonwealth, 2011 Ky. LEXIS 91 (Ky. June 16, 2011), modified, 2011 Ky. LEXIS 190 (Ky. Nov. 23, 2011), modified, 357 S.W.3d 470, 2011 Ky. LEXIS 191 ( Ky. 2011 ).

Evidence to be tested for DNA must exist even though a trial court may have found reasonable probability that the evidence as described by the movant would exonerate him, lead to a more favorable verdict, or definitely be exculpatory. Moore v. Commonwealth, 2011 Ky. LEXIS 91 (Ky. June 16, 2011), modified, 2011 Ky. LEXIS 190 (Ky. Nov. 23, 2011), modified, 357 S.W.3d 470, 2011 Ky. LEXIS 191 ( Ky. 2011 ).

Circuit court erred in concluding that it was precluded from ordering DNA testing to be performed by an outside laboratory and in concluding that any testing ordered had to be performed by the Kentucky State Police forensic laboratory because KRS 422.287 applied only to pre-conviction, pretrial testing, and its requirements did not control post-conviction proceedings under KRS 422.285 . Moore v. Commonwealth, 2011 Ky. LEXIS 91 (Ky. June 16, 2011), modified, 2011 Ky. LEXIS 190 (Ky. Nov. 23, 2011), modified, 357 S.W.3d 470, 2011 Ky. LEXIS 191 ( Ky. 2011 ).

Circuit court erred in concluding that it was precluded from ordering DNA testing to be performed by an outside laboratory and in concluding that any testing ordered had to be performed by the Kentucky State Police forensic laboratory because KRS 422.285(7) authorized the circuit court to make “any other orders that the court deems appropriate.” That was a fairly broad power and clearly anticipated that the initial test done by the police laboratory might not be the end of any testing. Moore v. Commonwealth, 2011 Ky. LEXIS 91 (Ky. June 16, 2011), modified, 2011 Ky. LEXIS 190 (Ky. Nov. 23, 2011), modified, 357 S.W.3d 470, 2011 Ky. LEXIS 191 ( Ky. 2011 ).

Trial court’s finding under KRS 422.285 in support of an order for testing, that there is a reasonable probability that an appellant may have been exonerated if the results of DNA testing were favorable, is not by itself conclusive of anything. The trial court’s finding is only relevant and significant to support requiring testing. By itself, without favorable results from a DNA test, that finding is meaningless as it relates to guilt or innocence. Section 422.285 is only a mechanism for obtaining post-conviction DNA testing, which in turn might be used to show innocence or be exculpatory to a lesser degree. The statute is not itself a mechanism for speculating about innocence. Moore v. Commonwealth, 357 S.W.3d 470, 2011 Ky. LEXIS 191 ( Ky. 2011 ), modified, 2011 Ky. LEXIS 190 (Ky. Nov. 23, 2011).

On a motion for DNA testing under KRS 422.285 , a circuit court need not necessarily make separate findings for each piece of evidence to be tested. Moore v. Commonwealth, 357 S.W.3d 470, 2011 Ky. LEXIS 191 ( Ky. 2011 ), modified, 2011 Ky. LEXIS 190 (Ky. Nov. 23, 2011).

Whether and when to order the collection of a sample of a KRS 422.285 petitioner’s DNA falls within the sound discretion of the trial court. So, too, does allowing the testing of a self-collected sample submitted by a petitioner’s counsel. While this latter practice may not be the best one, since it presents a greater possibility for mischief, a trial court is sufficiently cognizant of the risks of such self-collection to take steps to minimize them. Moore v. Commonwealth, 357 S.W.3d 470, 2011 Ky. LEXIS 191 ( Ky. 2011 ), modified, 2011 Ky. LEXIS 190 (Ky. Nov. 23, 2011).

While KRS 17.176 anticipates that DNA testing will ordinarily be done by the Kentucky State Police Forensic Laboratory or its designee, and may even evince a preference that testing be done there, it does not impose a limit on who may test, nor does it require that testing be performed by the Kentucky State Police Forensic Laboratory or a lab of its choice in all cases. Instead, whether to order independent or outside testing falls within the sound discretion of the circuit court. The only limit on the court’s power to order outside testing is that it may do so only if it deems such testing appropriate. KRS 422.285(7). Moore v. Commonwealth, 357 S.W.3d 470, 2011 Ky. LEXIS 191 ( Ky. 2011 ), modified, 2011 Ky. LEXIS 190 (Ky. Nov. 23, 2011).

Although the circuit court erred in its determination that it did not have jurisdiction to decide appellant's motion for DNA testing under this section, the error was harmless. Comparing DNA evidence from the scene with the now identified victim's DNA was highly unlikely to benefit appellant or change the outcome of his conviction and sentence. Peak v. Commonwealth, 482 S.W.3d 409, 2015 Ky. App. LEXIS 97 (Ky. Ct. App. 2015).

Since appellant was convicted in the Jefferson Circuit Court, that court was the proper venue for appellant to seek DNA testing, and this section granted that court jurisdiction to review and either grant or deny appellant's petition. Peak v. Commonwealth, 482 S.W.3d 409, 2015 Ky. App. LEXIS 97 (Ky. Ct. App. 2015).

4.Lost Evidence.

Circuit court is not required to speculate, and indeed should not, that lost, untested evidence could have exonerated a KRS 422.285 petitioner and therefore reverse a conviction. Such rank speculation cannot be used to undermine a conviction and sentence that has, in all other respects, been upheld as fairly and lawfully obtained. Moore v. Commonwealth, 2011 Ky. LEXIS 91 (Ky. June 16, 2011), modified, 2011 Ky. LEXIS 190 (Ky. Nov. 23, 2011), modified, 357 S.W.3d 470, 2011 Ky. LEXIS 191 ( Ky. 2011 ).

Only remedy available where evidence sought to be tested under KRS 422.285 is missing is dismissal of the petition, even if only as to the missing evidence. Moore v. Commonwealth, 357 S.W.3d 470, 2011 Ky. LEXIS 191 ( Ky. 2011 ), modified, 2011 Ky. LEXIS 190 (Ky. Nov. 23, 2011).

5.Request for DNA Testing Denied.

Defendant was convicted of the 1990 murders of a couple and assault of their infant son, who was shot during the crimes, and he received capital sentences; he moved for DNA testing, claiming that such testing would prove that another person committed the crimes. The trial court did not err in denying his petition because the age of any DNA found could not be established sufficiently to determine when it was deposited and DNA testing at best could result in mere speculation; as the owner of the vehicle and jacket that defendant wanted to have tested, defendant’s DNA would obviously be found, and if DNA belonging to a member of the victims’ family was also found, without being able to precisely pinpoint when the DNA was deposited, it would prove nothing. Even if another’s DNA could be found in the car or on defendant’s jacket after 16 years, that fact did not give rise to a reasonable probability of exonerating defendant, nor was there a reasonable probability that it would change the verdict or be exculpatory in any way. Bowling v. Commonwealth, 2011 Ky. LEXIS 98 (Ky. Mar. 24, 2011).

Although the trial court’s written order omitted the phrase, “reasonable probability,” with respect to KRS 422.285(3)(a), the trial court appropriately applied that standard in denying DNA testing. Even if the hairs that defendant sought to test were not his, it would not have proven that he was never inside the car where they were found. Wilson v. Commonwealth, 381 S.W.3d 180, 2012 Ky. LEXIS 64 ( Ky. 2012 ).

Appellant waived his due process claim regarding the unavailability of fingernail clippings and his inability to have them tested for DNA evidence because he did not pursue his argument to have the items tested in his appeal from the order refusing his request for DNA testing; his failure to assert his right to have the clippings analyzed foreclosed his right to make that demand later and his claim that the destruction of the clippings deprived him of due process. Garland v. Commonwealth, 458 S.W.3d 781, 2015 Ky. LEXIS 11 ( Ky. 2015 ).

6.Burden of Proof.

First level of proof the movant must make in support of the DNA testing request, under either KRS 422.285(2) or (3) is that the evidence sought would either exonerate the defendant, lead to a more favorable verdict or sentence, or otherwise be exculpatory. To do this, the movant must describe the role the evidence would have had if available in the original prosecution. It is obvious that at this point the movant will not know with certainty what the DNA evidence will show. Thus, KRS 422.285(2)(a) and (3)(a)(1) require the court to undertake the reasonable probability analysis under the assumption that the evidence will be favorable to the movant. This assumption does not mean that the movant gets a free pass simply because he can allege that the evidence will be helpful. He must still state what he expects the evidence to be and how that evidence would, within a reasonable probability, result in exoneration or a more favorable verdict or sentence or be exculpatory. In the exercise of sound discretion, the trial court must then make the call whether such reasonable probability exists, looking to whether such evidence would probably result in a different verdict or sentence. However, the analysis does not stop there. Bowling v. Commonwealth, 357 S.W.3d 462, 2010 Ky. LEXIS 313 ( Ky. 2010 ).

Both KRS 422.285(2) and (3) also require that the DNA evidence still be in existence and in such a condition that testing can be conducted. KRS 422.285(2)(b) and (3)(b). This requires the movant, at a bare minimum, to specifically identify what is to be tested, and where on the item the DNA is expected to be found, as it is patently unreasonable to expect every area of an item to be tested. Since the evidence is not in the movant’s custody, this may require the Commonwealth to establish the existence and condition of the evidence left in its or the court’s control. If the Commonwealth objects that the evidence is not testable, since the state is the custodian of the evidence, the Commonwealth must go forward with expert testimony as to the viability of testing, which the movant may rebut. Even though a trial court may have found reasonable probability that the evidence as described by the movant would exonerate him, lead to a more favorable verdict, or definitely be exculpatory, the trial court must also find that the evidence requested to be tested exists in a condition that will allow proper DNA testing. If it is not, then obviously the inquiry is at an end. Bowling v. Commonwealth, 357 S.W.3d 462, 2010 Ky. LEXIS 313 ( Ky. 2010 ).

7.Relief Not Available.

Petitioner convicted of murder and sentenced to life imprisonment was not entitled to post-conviction DNA testing under KRS 422.285 , because § 422.285 only allowed a person convicted of and sentenced to death for a capital offense to request DNA testing and analysis of evidence. Partin v. Commonwealth, 337 S.W.3d 639, 2010 Ky. App. LEXIS 249 (Ky. Ct. App. 2010).

8.Timing.

Capital defendant’s motion for DNA testing was not barred under the doctrine of laches, which did not apply under the postconviction DNA testing statute. Wilson v. Commonwealth, 381 S.W.3d 180, 2012 Ky. LEXIS 64 ( Ky. 2012 ).

It was error for a trial court to deny an inmate’s petition for post-conviction DNA testing on the grounds that KRS 422.285 restricted such testing to death penalty cases because it was appropriate to apply an amendment found in KRS 422.285 (5), applying the statute more broadly, retroactively to the inmate’s case, since the amendment reflected a strong public policy of the Commonwealth of Kentucky. Virgil v. Commonwealth, 403 S.W.3d 577, 2013 Ky. App. LEXIS 76 (Ky. Ct. App. 2013).

Cited in:

Hodge v. Haeberlin, 579 F.3d 627, 2009 FED App. 0326P, 2009 U.S. App. LEXIS 19968 (6th Cir. Ky. 2009 ); Bowling v. Commonwealth, 2010 Ky. LEXIS 242 (Ky. Sept. 23, 2010).

422.287. Motion for DNA testing of evidence — Court order — Results — Maintaining results.

  1. When a person is being tried for a capital offense and there is evidence in the case which may be subjected to deoxyribonucleic acid (DNA) testing and analysis, the Commonwealth or the defendant may move to have any item of evidence not previously subjected to DNA testing and analysis tested and analyzed.
  2. If the court is satisfied that the item of evidence has not been tested and analyzed, that DNA testing and analysis would yield evidence of probative value, and that the item of evidence has not previously been the subject of DNA testing and analysis or that new DNA testing and analysis would yield a more accurate result, the court shall order DNA testing and analysis of the evidence.
  3. The testing and analysis of the evidence shall be done by the Department of Kentucky State Police laboratory or at another laboratory selected by the Department of Kentucky State Police laboratory.
  4. DNA testing and analysis results shall be made available to both the Commonwealth and the defendant, and either the Commonwealth or the defendant may move that they be admitted at trial.
  5. If the defendant is convicted of any offense for which DNA test and analysis results are required to be maintained by law, the DNA test and analysis results obtained pursuant to this section shall be utilized for that purpose, whether or not the test and analysis results were introduced in the case.

History. Enact. Acts 2002, ch. 154, § 2, effective July 15, 2002; 2007, ch. 85, § 308, effective June 26, 2007.

NOTES TO DECISIONS

1.Applicability.

Circuit court erred in concluding that it was precluded from ordering DNA testing to be performed by an outside laboratory and in concluding that any testing ordered had to be performed by the Kentucky State Police forensic laboratory because KRS 422.287 applied only to pre-conviction, pretrial testing, and its requirements did not control post-conviction proceedings under KRS 422.285 . Moore v. Commonwealth, 2011 Ky. LEXIS 91 (Ky. June 16, 2011), modified, 2011 Ky. LEXIS 190 (Ky. Nov. 23, 2011), modified, 357 S.W.3d 470, 2011 Ky. LEXIS 191 ( Ky. 2011 ).

2.Request for DNA Testing Denied.

Appellant waived his due process claim regarding the unavailability of fingernail clippings and his inability to have them tested for DNA evidence because he did not pursue his argument to have the items tested in his appeal from the order refusing his request for DNA testing; his failure to assert his right to have the clippings analyzed foreclosed his right to make that demand later and his claim that the destruction of the clippings deprived him of due process. Garland v. Commonwealth, 458 S.W.3d 781, 2015 Ky. LEXIS 11 ( Ky. 2015 ).

Cited in:

Moore v. Commonwealth, 357 S.W.3d 470, 2011 Ky. LEXIS 191 ( Ky. 2011 ).

422.290. Attendance of Department of Corrections personnel as witnesses in civil suits out of county — Records provable by copy.

  1. No officer or employee of the Department of Corrections shall be required to give personal attendance as a witness in any civil suit, arising from that person’s employment, out of the county in which his or her official workstation is situated, but his or her deposition shall be taken in lieu thereof. However, in the court in which the civil action is pending, if the court finds that the witness is a necessary witness for trial, the court may order the personal attendance of the witness at trial.
  2. Subject to the approval of the court, the Department of Corrections records which relate to supervision, custody, or confinement of an offender or which constitute an offender’s medical charts or records that are susceptible to photostatic reproduction may be proved as to foundation, identity, and authenticity, without any preliminary testimony, by use of legible and durable copies certified by the employee of the department charged with the responsibility of being the custodian of the originals thereof. The certification shall be signed before a notary public by the employee and shall include the full name of the offender and, for medical charts or records, the offender’s medical record number and the number of pages in the medical record. The certification shall also include a legend substantially to the following effect: “The copies of records for which this certification is made are true and complete reproductions of the original or microfilmed records which are housed at (provide the office, address, and phone number). The original records were made in the regular course of business, and it was the regular course of the Department of Corrections to make the records at or near the time of the matter recorded. This certification is given by the custodian of the records in lieu of the custodian’s personal appearance.”
  3. Nothing in this section shall be construed as a waiver of any privilege the department may have relating to the records.

History. Enact. Acts 2002, ch. 11, § 6, effective July 15, 2002.

422.295. Confidentiality of communications between human trafficking victim and caseworker.

  1. As used in this section:
    1. “Confidential communication” means information transmitted between the victim and the caseworker in the course of their relationship and in confidence by a means which, so far as the victim is aware, discloses the information to no third persons other than those who are present to further the interests of the victim in the consultation or those to whom disclosures are reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the human trafficking counselor is consulted and includes all information regarding the facts and circumstances involving the trafficking;
    2. “Holder of the privilege” means the victim when he or she has no guardian or conservator, or a guardian or conservator of the victim when the victim has a guardian or conservator; and
    3. “Trafficking victim counselor” includes any of the following:
      1. A counselor, as that term is defined in Rule 506 of the Kentucky Rules of Evidence;
      2. A psychotherapist as that term is defined in Rule 507 of the Kentucky Rules of Evidence; and
      3. A person employed and supervised by one (1) of the persons specified in this paragraph to render services to human trafficking victims and who has received forty (40) hours of training in the history of human trafficking; civil and criminal law as it relates to human trafficking; societal attitudes towards human trafficking; peer counseling techniques; housing, public assistance, and other financial resources available to meet the financial needs of human trafficking victims; and referral services available to human trafficking victims.
  2. A human trafficking victim has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to a trafficking victim counselor for the purpose of receiving counseling, therapy, services, information, or treatment related to human trafficking.
  3. A human trafficking caseworker shall inform a trafficking victim of any applicable limitations on confidentiality of communications between the victim and the caseworker. This information may be given orally.

History. Enact. Acts 2007, ch. 19, § 1, effective June 26, 2007.

Research References and Practice Aids

Kentucky Bench & Bar.

Hunt, Human Trafficking: A Primer for Kentucky Lawyers. Vol. 73, No. 4, July 2009, Ky. Bench & Bar, 17.

Medical Records

422.300. Use of photostatic copies of medical records — Originals held available.

  1. As used in KRS 422.300 to 422.330 , “state” has the same meaning as in KRS 421.360 .
  2. Medical charts or records of any hospital licensed under either KRS 216B.105 or a similar law of another state or the United States that are susceptible to photostatic reproduction may be proved as to foundation, identity and authenticity without any preliminary testimony, by use of legible and durable copies, certified in the manner provided herein by the employee of the hospital charged with the responsibility of being custodian of the originals thereof. Said copies may be used in any trial, hearing, deposition or any other judicial or administrative action or proceeding, whether civil or criminal, in lieu of the original charts or records which, however, the hospital shall hold available during the pendency of the action or proceeding for inspection and comparison by the court, tribunal or hearing officer and by the parties and their attorneys of record.

History. Enact. Acts 1978, ch. 109, § 1, effective June 17, 1978; 1980, ch. 188, § 291, effective July 15, 1980; 2011, ch. 41, § 1, effective June 8, 2011.

Legislative Research Commission Notes.

A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136 .

NOTES TO DECISIONS

1.Comment or Explanation Required.

The trial court did not abuse its discretion where it declined to admit into evidence, a voluminous hospital record, in the absence of any witness to comment upon it or explain it to the jury as if the record had been admitted in mass and without the prior treating physician or any physician available to explain, counsel would have been free to draw whatever conclusions they wished without fear of evidentiary contradiction and, in the heat of trial, there was a probability that distortion, confusion or misunderstanding would have resulted. Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503, 1989 Ky. LEXIS 84 ( Ky. 1989 ).

2.Effect on Rules of Evidence.

This section is merely a convenient device for authenticating medical records; it does not assure their admissibility or abrogate other rules of evidence relating to the admission of documentary evidence. Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503, 1989 Ky. LEXIS 84 ( Ky. 1989 ).

3.Admissibility.

A trial court is not required to accept into evidence a large volume of hospital records without there having been any witness comment upon or explanation of the records to the jury. Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503, 1989 Ky. LEXIS 84 ( Ky. 1989 ).

Trial court abused its discretion by excluding an injured bus passenger’s medical records as hearsay because the documents were prepared by an individual with personal knowledge of the subject matter and in the course of the regularly conducted business activity of a hospital. Zewoldi v. Transit Auth., 553 S.W.3d 841, 2018 Ky. App. LEXIS 144 (Ky. Ct. App. 2018).

Trial court did not err in limiting the cross-examination of a doctor using an unexplained audit trail because a patient was able to ask questions regarding what portions of her medical records the doctor viewed without using the audit trail; even had the record been deemed self-authenticated, absent an explanation, the audit trail could have been confusing to the jury. Ky. Guardianship Adm'rs, LLC v. Baptist Healthcare Sys., 2019 Ky. App. LEXIS 82 (Ky. Ct. App. May 3, 2019), aff'd, 2021 Ky. LEXIS 375 (Ky. Oct. 28, 2021).

Research References and Practice Aids

Kentucky Bench & Bar.

Potts, Providing Medical Records Under KRS 422.300 et seq., Vol. 42, No. 4, October, 1978, Ky. Bench & Bar 24.

Northern Kentucky Law Review.

Heeter, Recent Decisions on the Kentucky Rules of Evidence, 22 N. Ky. L. Rev. 463 (1995).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Agreed Order for Production of Documents in Lieu of Deposition, Form 83.07.

422.305. Subpoena of records — Certification of copies — Personal delivery.

  1. When a subpoena duces tecum is served upon any employee of any hospital, requiring the production of any such medical charts or records at any action or proceeding, it is sufficient if the employee of the hospital charged with the responsibility of being custodian of the original thereof promptly notifies, in writing, the attorney for the party causing service of the subpoena, of the hospital’s election to proceed under the provisions of KRS 422.300 to 422.330 and of the estimated actual and reasonable expenses of reproducing such charts or records. Upon such notification, the attorney causing the service of the subpoena shall notify all other attorneys of record or other parties if they are not represented by attorneys of the hospital’s election. Following such election, the employee of the hospital charged with the responsibility of being custodian of the original charts or records specified in the subpoena shall hold the originals available at the hospital, and upon payment to the hospital of the estimated reproduction expenses by the party causing service of the subpoena, or by any other party, shall promptly deliver, by certified mail or by personal delivery, legible and durable copies, certified by said hospital employee, of all medical charts or records specified in such subpoena to the person specified in the subpoena.
  2. The certification shall be signed before a notary public by the employee of the hospital charged with the responsibility of being custodian of the records and shall include the full name of the patient, the patient’s medical record number, the number of pages in the medical record, and a legend substantially to the following effect: “The copies of records for which this certification is made are true and complete reproductions of the original or microfilmed medical records which are housed in (name of hospital). The original records were made in the regular course of business, and it was the regular course of (name of hospital) to make such records at or near the time of the matter recorded. This certification is given pursuant to KRS  . . . . .  by the custodian of the records in lieu of his or her personal appearance.” Such copies shall be separately enclosed and sealed in an inner envelope or wrapper bearing the legend “Copies of Medical Records,” and the title and number of the action or proceeding, the date of the subpoena, the name of the hospital, the full name of the patient, the patient’s medical record number and the name and business telephone number of the employee making the certification, and the sealed envelope or wrapper, together with the certification, shall then be enclosed and sealed in an outer envelope or wrapper, and delivered to the requesting party.
  3. When the copies of records are personally delivered, a receipt shall be presented to the person receiving the records for his signature and shall be immediately signed and returned to the person delivering the records. The receipt shall contain the name of the hospital, the full name of the patient, the medical record number of the patient, the date the copies of records were received, and the signature of the person receiving the records. When the copies of records are sent via certified mail, the receipt used by the postal authorities shall be sufficient to prove delivery and receipt of the copies of records.
  4. If the hospital has none of the charts or records specified in the subpoena, or only part thereof, the employee of the hospital charged with the responsibility of being custodian of original hospital charts or records shall so state in a notarized affidavit and, following notice and payment of expenses shall hold available the original charts or records which are in the hospital’s custody and specified in the subpoena and shall deliver certified the copies together with the affidavit.

History. Enact. Acts 1978, ch. 109, § 2, effective June 17, 1978.

NOTES TO DECISIONS

1.Costs.

Costs for billing, bad debt expense and space expense were unreasonable charges to include in the computation of the estimated actual and reasonable expense of copying a patient’s medical records under this section as they represented expenses not actually incurred. Hardin County v. Valentine, 894 S.W.2d 151, 1995 Ky. App. LEXIS 48 (Ky. Ct. App. 1995).

Research References and Practice Aids

Kentucky Bench & Bar.

Potts, Providing Medical Records Under KRS 422.300 et seq., Vol. 42, No. 4, October, 1978, Ky. Bench & Bar 24.

A Year in the Life of HIPAA: New Tips, Observations and Suggestions for Improvement, Vol. 68, No. 4, July 2004, Ky. Bench & Bar 11.

422.310. Personal attendance of custodian of hospital records, when.

The personal attendance of the employee of the hospital charged with the responsibility of being custodian of the original charts or records specified in the subpoena shall be required if the records pertain to a patient treated by a psychiatrist and the hospital has not received within the thirty (30) days preceding service of the subpoena an authorization signed by the patient or his legal guardian permitting the contents of the records to be released. If personal attendance of a witness is required for the reason provided in this section, the hospital may nevertheless elect to substitute true, legible and durable copies of the charts or records specified in the subpoena duces tecum by the giving of a written notice of such election, in which case payment to the hospital of the actual and reasonable expenses of duplication of such charts or records by any party to the proceeding in which the subpoena was issued, or such party’s attorney of record, shall be a condition precedent to the personal attendance of any person pursuant to the subpoena, unless otherwise ordered by the court or other body before which said action or proceeding is pending.

History. Enact. Acts 1978, ch. 109, § 3, effective June 17, 1978.

NOTES TO DECISIONS

1.Agreement to Relieve Custodian from Court Appearance.

A simple agreement to relieve a medical records librarian from attending court to “polly parrot” what was contained in the medical records could not be automatically translated as an agreement to admit evidence which would otherwise be inadmissible under the circumstances; whether the records librarian certified the record or appeared in person to testify, objections over the admissibility of portions of the records were always available to the party unless a clear waiver was set forth. Phipps v. Winkler, 715 S.W.2d 893, 1986 Ky. App. LEXIS 1143 (Ky. Ct. App. 1986).

Research References and Practice Aids

Kentucky Bench & Bar.

Potts, Providing Medical Records Under KRS 422.300 et seq., Vol. 42, No. 4, October, 1978, Ky. Bench & Bar 24.

422.315. Patient may ask to prohibit or limit use of his medical records.

Any patient whose medical records or charts are copied and delivered pursuant to KRS 422.300 to 422.330 , any person acting on his behalf, the hospital having custody of such records, or any physician, nurse or other person responsible for entries on such charts or records shall have standing to apply to the court or other body before which the action or proceeding is pending for a protective order denying, restricting or otherwise limiting access and use of such copies or original charts and records. Such patients, persons, hospitals, physicians or nurses who are not parties to the action or proceeding and who wish to apply for a protective order may petition to intervene in the action or proceeding and simultaneously apply for such a protective order.

History. Enact. Acts 1978, ch. 109, § 4, effective June 17, 1978.

Research References and Practice Aids

Kentucky Bench & Bar.

Potts, Providing Medical Records Under KRS 422.300 et seq., Vol. 42, No. 4, October, 1978, Ky. Bench & Bar 24.

422.317. Copy of patient’s medical record to be supplied on patient’s written request — Exception for Department of Corrections.

  1. Upon a patient’s written request, a hospital licensed under KRS Chapter 216B or a health care provider shall provide, without charge to the patient, a copy of the patient’s medical record. A copying fee, not to exceed one dollar ($1) per page, may be charged by the health care provider for furnishing a second copy of the patient’s medical record upon request either by the patient or the patient’s attorney or the patient’s authorized representative.
  2. The Department of Corrections shall not be considered as a health care provider under this section; however, the department may make medical records of an individual inmate available to that individual inmate unless the department, through its designee, determines that the provision of the record is subject to the provisions of KRS 197.025 .

History. Enact. Acts 1994, ch. 512, Part 16, § 117, effective July 15, 1994; 1996, ch. 334, § 6, effective July 15, 1996.

NOTES TO DECISIONS

1.In General.

Under KRS 422.317(1), the first, free copy of medical records must be made available to an agent of the patient if the patient expressly so requests. Providers are required only to bear the cost of the first copy and may seek reimbursement for any charges incurred in mailing, faxing, scanning or other means used to transmit these records to the patient or the patient’s agent. William C. Eriksen, P.S.C. v. Gruner & Simms, 400 S.W.3d 290, 2013 Ky. App. LEXIS 77 (Ky. Ct. App. 2013).

2.Constitutionality.

Health care provider was required to make a free copy of a patient’s medical record available to the patient’s attorneys as authorized agents for the patient; however, KRS 422.317(1) allowed the provider to charge for additional expenses such as mailing or faxing. Imposing this requirement did not violate Ky. Const. § 2, nor was there any merit to the provider’s takings and equal protection arguments under U.S. Const. amends. V, XIV. William C. Eriksen, P.S.C. v. Gruner & Simms, 400 S.W.3d 290, 2013 Ky. App. LEXIS 77 (Ky. Ct. App. 2013).

Cited in:

Hardin County v. Valentine, 894 S.W.2d 151, 1995 Ky. App. LEXIS 48 (Ky. Ct. App. 1995).

Opinions of Attorney General.

A patient is entitled to require a medical provider to produce one free copy of their medical records without charge. While an insurance company, acting as a reparations obligor, cannot require a patient to assign their free copy to the insurance company, a patient may make this assignment to a party of their choosing. OAG 09-009 .

Where response from the Transportation Cabinet, Division of Driver Licensing to a request to inspect various records relating to a client’s licensing process initially required payment to a rehabilitation center for $40.00 for an “in-car driver evaluation” performed at the center, later modified to a cost of $1.00 per page for the report, the Cabinet violated the reasonable fee provision of the Open Records Act, KRS 61.874(3). The courts and the Office of the Attorney General have determined that a charge of ten cents per page is reasonable for a standard 8-1/2 inches x 11 inches paper copy. It should also be noted that under subsection (1) of this section, if the Cabinet had not retained a copy or if the requesting party had not proceeded under the Open Records Act, subsection (1) of this section may have required a release of the records without charge. 96-ORD-267.

Research References and Practice Aids

Kentucky Bench & Bar.

Schabell, 1994 Workers’ Compensation Changes — A Plaintiff’s Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 17.

Northern Kentucky Law Review.

Costich, The Kentucky Health Reform Act, 22 N. Ky. L. Rev. 381 (1995).

422.320. Return of medical records to court clerk.

When the copies of records are delivered to a party or his attorney of record for use in a deposition, they shall, after termination of the deposition, be delivered personally or by certified mail to the clerk of the court or other body before which the action or proceeding is pending, and it shall be the responsibility of such party or attorney to transmit the receipt obtained to the employee of the hospital charged with responsibility of being custodian of the original records. When the records are received by the clerk of a court or other body from the hospital or from a party or his attorney of record they shall be retained in the clerk’s custody at all times except when actually used in the action or proceeding. Upon issuance of a final order terminating a case, the copies of the records will be promptly filed by the clerk of the court with all other documents pertaining to the case until such a time as the normal retention period for court records expires. The copies of records shall then be permanently disposed of by the clerk in a manner that protects the confidentiality of the medical information contained therein. Should the case be appealed, the copies of records shall be forwarded to the Court of Appeals with other documents pertaining to the case and retained and disposed of in the manner previously described.

History. Enact. Acts 1978, ch. 109, § 5, effective June 17, 1978.

NOTES TO DECISIONS

Cited in:

Hardin County v. Valentine, 894 S.W.2d 151, 1995 Ky. App. LEXIS 48 (Ky. Ct. App. 1995).

422.325. Proper procedure for obtaining records required.

No institution or person shall be held in contempt or otherwise penalized for failure of production unless the business records of the institution indicate that the costs provided herein have been established and tendered. No sanction or remedy for contempt shall be applied against any such person or institution unless a subpoena or order expressly commanding the person’s presence has been issued by authority of the court or other body.

History. Enact. Acts 1978, ch. 109, § 6, effective June 17, 1978.

422.330. Privilege not waived.

Nothing contained herein shall be construed to waive the psychiatrist-patient privilege, or to require any such privileged communications to be disclosed.

History. Enact. Acts 1978, ch. 109, § 7, effective June 17, 1978.

422.350. Admissibility of photographic evidence in prosecution of offense defined in KRS Chapter 514 or 515 — Return of photographed property to owner by law enforcement agency — Exception.

  1. In a prosecution for any offense defined in KRS Chapter 514 or 515 the court shall receive, as competent evidence, a photograph of property over which the accused is alleged to have exerted unauthorized control or to have otherwise obtained unlawfully, if the photograph:
    1. Will serve the purpose of demonstrating the nature and identity of the property; and
    2. Is otherwise admissible into evidence under all other rules of law governing the admissibility of photographs into evidence.

      The fact that it is impractical to introduce into evidence the actual property for any reason including its size, weight, or unavailability, need not be established for the court to find a photograph of that property to be competent evidence. If a photograph is found to be competent evidence under this section, it is admissible into evidence in place of the property and to the same extent as the property itself.

  2. A law enforcement agency that is holding as evidence property over which a person is alleged to have exerted unauthorized control or to have otherwise obtained unlawfully shall return that property to its owner if:
    1. The property has been photographed in a manner that will serve the purpose of demonstrating the nature and identity of the property, and if these photographs are filed with or retained by the law enforcement agency in place of the property;
    2. Receipt for the property is obtained from the owner upon delivery by the law enforcement agency;
    3. The prosecuting attorney who is prosecuting a case that involves the property has not requested the law enforcement agency to decline requests for return of the property to its owner; and
    4. The property may be lawfully possessed by the owner.
  3. Notwithstanding the provisions of subsection (2) of this section, a court may, if a motion so requesting is filed by a defendant within twenty (20) days of arrest, order the law enforcement agency to hold such property as evidence pending completion of the trial. However, the court may, for good cause, extend the time allowed for the defendant to file a motion to have the property held.

History. Enact. Acts 1984, ch. 125, § 1, effective July 13, 1984.

422.990. Penalties.

Any person who violates KRS 422.110 shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500) or imprisoned for not less than ten (10) nor more than sixty (60) days, or both.

History. 1649b-4.

CHAPTER 422A Kentucky Rules of Evidence [Repealed]

Compiler’s Notes.

Section 93 of Acts 1990, ch. 88, provided: “The provisions of this law shall become effective as and to the extent the Supreme Court of Kentucky enters an order of court adopting the Kentucky Rules of Evidence pursuant to its authority to govern the practice and procedure of the Court of Justice under Section 116 of the Kentucky Constitution.”

422A.0101 to 422A.1104. [Amended, renumbered and transferred.]

Compiler’s Notes.

In 1990 Ky. Acts, ch. 88 (HB 214) the General Assembly enacted the Kentucky Rules of Evidence which was codified as KRS Chapter 422A as set out in the bound volume; section 93 of said act provided that such law would go into effect when the Kentucky Supreme Court entered an order adopting such law; however, the Supreme Court never entered such order and in 1992 said section 93 was repealed by § 31 of 1992 Ky. Acts, ch. 324. In 1992 Ky. Acts., ch. 324 (HB 241) the General Assembly amended certain sections of KRS Chapter 422A, and in § 34 of such Act directed that the Rules be codified as a separate part of the Kentucky Revised Statutes and not as a chapter thereof, and further directed the Reviser of Statutes to renumber the provisions of the KRS Chapter 422A into “this separate entity in a manner consistent with the numbering found in the Federal Rules of Evidence.” Therefore, the Kentucky Rules of Evidence as enacted by 1990 Ky. Acts ch. 88, as amended by 1992 Ky. Acts ch. 324, have been renumbered by the Reviser of Statutes pursuant to § 34 of 1992 Ky. Acts ch. 324 as the Kentucky Rules of Evidence, KRE Rule 101 to Rule 1104. Said Rules became effective July 1, 1992 and are compiled in the August, 1992 Supplement to the Kentucky Rules Annotated 1992/1993 Edition.

In order to assist the user the following table shows where former sections of KRS Chapter 422A may be found in the Kentucky Rules of Evidence. NNYU means “Number Not Yet Utilized.”

KRS Chapter 422A KRE 422A.0101 101 422A.0102 102 422A.0103 103 422A.0104 104 422A.0105 105 422A.0106 106 422A.0107 107 422A.0201 201 422A.0301 301 422A.0302 302 422A.0401 401 422A.0402 402 422A.0403 403 422A.0404 404 422A.0405 405 422A.0406 NNYU 422A.0407 407 422A.0408 408 422A.0409 409 422A.0410 410 422A.0411 411 422A.0412 412 422A.0501 501 422A.0502 NNYU 422A.0503 503 422A.0504 504 422A.0505 505 422A.0506 506 422A.0507 507 422A.0508 508 422A.0509 509 422A.0510 510 422A.0511 511 422A.0601 601 422A.0602 602 422A.0603 603 422A.0604 604 422A.0605 605 422A.0606 606 422A.0607 607 422A.0608 608 422A.0609 609 422A.0610 610 422A.0611 611 422A.0612 612 422A.0613 613 422A.0614 614 422A.0615 615 422A.0701 701 422A.0702 702 422A.0703 703 422A.0704 NNYU 422A.0705 705 422A.0706 706 422A.0801 801 422A.0802 802 422A.0801A 801A 422A.0802 802 422A.0803 803 422A.0804 804 422A.0805 805 422A.0806 806 422A.0901 901 422A.0902 902 422A.0903 903 422A.1001 1001 422A.1002 1002 422A.1003 1003 422A.1004 1004 422A.1005 1005 422A.1006 1006 422A.1007 1007 422A.1008 1008 422A.1101 1101 422A.1102 1102 422A.1103 1103 422A.1104 1104

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CHAPTER 423 Notaries Public and Commissioners of Foreign Deeds

423.010. Appointment, term, and qualifications of notaries — County clerk has powers of notary when acting in capacity as clerk. [Repealed]

History. 3721: amend. Acts 1952, ch. 45, § 1; 1968, ch. 100, § 22; 1974, ch. 235, § 1; 1976 (Ex. Sess.), ch. 20, § 6, effective January 2, 1978; 1978, ch. 384, § 524, effective June 17, 1978; 1986, ch. 204, § 12, effective July 15, 1986; 1990, ch. 486, § 1, effective July 13, 1990; 2002, ch. 231, § 1, effective July 15, 2002; 2006, ch. 186, § 1, effective July 12, 2006; repealed by 2019 ch. 86, § 50, effective January 1, 2020.

423.020. Notary may act in any county — Certification of notary’s authority. [Repealed]

History. 3721a: amend. Acts 1946, ch. 162, § 1; 1990, ch. 88, § 85; 2006, ch. 255, § 34, effective January 1, 2007; repealed by 2019 ch. 86, § 50, effective January 1, 2020.

423.030. Protests to be recorded — Copies as evidence. [Repealed]

History. 3723; repealed by 2019 ch. 86, § 50, effective January 1, 2020.

423.040. Notice of dishonor — To whom sent. [Repealed]

History. 3725; repealed by 2019 ch. 86, § 50, effective January 1, 2020.

423.050. Records of notary to be delivered to county clerk, when. [Repealed]

History. 3724; 1990, ch. 88, § 86; repealed by 2019 ch. 86, § 50, effective January 1, 2020.

423.060. Foreign notary — When protest by is evidence. [Repealed]

History. 3726; repealed by 2019 ch. 86, § 50, effective January 1, 2020.

423.070. Commissioners of foreign deeds — Appointment, term. [Repealed]

History. 389; repealed by 2019 ch. 86, § 50, effective January 1, 2020.

423.080. Powers of commissioners. [Repealed]

History. 390, 391: amend. Acts 1974, ch. 386, § 99; repealed by 2019 ch. 86, § 50, effective January 1, 2020.

423.110. Recognition of notarial acts performed outside this state.

For the purposes of KRS 423.110 to 423.190 , “notarial acts” means acts which the laws and regulations of this state authorize notaries public of this state to perform, including the administering of oaths and affirmations, taking proof of execution and acknowledgments of instruments, and attesting documents. Notarial acts may be performed outside this state for use in this state with the same effect as if performed by a notary public of this state by the following persons authorized pursuant to the laws and regulations of other governments in addition to any other person authorized by the laws and regulations of this state:

  1. A notary public authorized to perform notarial acts in the place in which the act is performed;
  2. A judge, clerk, or deputy clerk of any court of record in the place in which the notarial act is performed;
  3. An officer of the foreign service of the United States, a consular agent, or any other person authorized by regulation of the United States Department of State to perform notarial acts in the place in which the act is performed;
  4. A commissioned officer in active service with the Armed Forces of the United States and any other person authorized by regulation of the Armed Forces to perform notarial acts if the notarial act is performed for one (1) of the following or his dependents: a merchant seaman of the United States, a member of the Armed Forces of the United States, or any other person serving with or accompanying the Armed Forces of the United States;
  5. Any other person authorized to perform notarial acts in the place in which the act is performed; or
  6. A person, either a resident or a nonresident of Kentucky, who is appointed by the Governor of Kentucky to perform notarial acts in or outside this state covering writings prepared for recordation in this state.

History. Enact. Acts 1970, ch. 131, § 1, July 1, 1970; 1976, ch. 65, § 1; 1982, ch. 144, § 1, effective July 15, 1982.

NOTES TO DECISIONS

1.Out of Country Oath.

Trial court abused its discretion by overruling a father's modification motion on the ground that he could not be physically present in court for a hearing since he was unable to legally enter the United States; due to an older child's emancipation, the trial court was under an affirmative obligation to review the support and enter a new order, and the father argued that modification was in order due to a change in the currency exchange rate. There was a procedure for putting the father under oath in another country. Moskovitz v. Moskovitz, 459 S.W.3d 886, 2015 Ky. App. LEXIS 46 (Ky. Ct. App. 2015).

Cited in:

Hub City Wholesale Electric, Inc. v. Mik-Beth Electrical Co., 621 S.W.2d 242, 1981 Ky. App. LEXIS 288 (Ky. Ct. App. 1981).

Opinions of Attorney General.

Kentucky law does not permit commissioned officers or enlisted personnel to take acknowledgments or perform other notarial acts for spouses or other dependents of military personnel who are within the limits of Kentucky; however, commissioned officers and enlisted personnel may be appointed as notaries public by the Kentucky Secretary of State if they meet the requirements of KRS 423.010 . OAG 82-591 .

Based upon the language of subdivision (4) of this section, commissioned officers or enlisted personnel are not permitted to take acknowledgments or perform other notarial acts for spouses or other dependents of military personnel who are within the limits of Kentucky; the federal military reservation of Fort Knox must be considered within the limits of Kentucky for at least the limited purpose of applying subdivision (4). OAG 83-136 .

Section 228 of the Constitution requires an officer taking the oath of office to be a citizen or resident of Kentucky, and Const., § 234 requires all civil officers of Kentucky to reside in Kentucky; therefore, the provision of subdivision (6) of this section relating to the appointment of a special notary living in a foreign jurisdiction, is unconstitutional. However, under the principle of severability, as expressed in KRS 446.090 , this section, minus the offending language involving appointing nonresidents, is constitutional; thus the special notary, who lives in Kentucky, may, under this section, engage in notarial acts in a foreign jurisdiction, provided that such exercise of function does not violate the public policy of or is not in basic conflict with the law of the foreign jurisdiction; the extraterritorial recognition of this section is only based upon the principles of comity. OAG 85-36 .

The special notary, who lives in Kentucky, may, under this section, engage in notarial acts in a foreign jurisdiction, provided that such exercise of function does not violate the public policy of or is not in basic conflict with the law of the foreign jurisdiction; the extraterritorial recognition of this section is only based upon the principles of comity. OAG 85-36 (modified by OAG 88-20 to the extent of conflict).

All notary publics, residents of Kentucky, including those appointed under this section, must take the oath mentioned in this section before the county judge/executive of the county in which the notary resides, and must take the oath prescribed in Const., § 228 before one of the applicable officers mentioned in KRS 62.020 . OAG 85-36 .

Since there are no substantial reasons to prohibit nonresidents from becoming notaries in this commonwealth, barring nonresidents from the ability to practice as notaries is unconstitutional. OAG 88-20 (modifying OAG 85-36 to extent of conflict).

Since residency should not be considered a requirement to practice as a notary, the provision in Const., § 228 regarding state citizenship should be deleted from the oath given to a notary; furthermore, the oath may be administered in any county. OAG 88-20 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Notary Public, § 21.00.

423.120. Authentication of authority of officer. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 131, § 2) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore, the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law, see Kentucky Rules of Evidence, Rule 902.

423.130. Certificate of person taking acknowledgment.

The person taking an acknowledgment shall certify that:

  1. The person acknowledging appeared before him and acknowledged he executed the instrument; and
  2. The person acknowledging was known to the person taking the acknowledgment or that the person taking the acknowledgment had satisfactory evidence that the person acknowledging was the person described in and who executed the instrument.

History. Enact. Acts 1970, ch. 131, § 3, July 1, 1970.

NOTES TO DECISIONS

Analysis

1.Defective Acknowledgement.

Summary judgment was granted to a trustee because she could avoid a corporation’s mortgage lien on a mobile home since the trustee had priority as a bona fide purchaser pursuant to 11 USCS § 544(a)(3), since the mortgage did not meet the requirements of KRS 423.130 and was therefore defectively acknowledged, and because KRS 423.150 did not provide any relief to the corporation. Coleman v. Altegra Credit Co. (In re Coleman), 2004 Bankr. LEXIS 967 (Bankr. E.D. Ky. July 21, 2004).

Where a recorded mortgage did not have a valid acknowledgment pursuant to KRS 382.270 , the mortgage was treated as if it had never been recorded. Because the defective mortgage was treated as though it was never recorded, the assignment of the mortgage to the creditor was outside the chain of title, and the mortgage was avoided pursuant to 11 U.S.C.S. § 544(a)(3). Lyon v. Franklin Mortg. Funding (In re Shannon), 343 B.R. 585, 2006 Bankr. LEXIS 1087 (Bankr. E.D. Ky. 2006 ).

Mortgage granting a company a security interest in a debtor’s property was improperly acknowledged under KRS 423.130 because the name of the mortgagor, the name of the county, and the date of the acknowledgment were left blank following the debtor’s signature. Because the mortgage was defectively acknowledged, any attempted conveyance was invalid as against a bona fide purchaser for value pursuant to KRS 382.270 ; and a bankruptcy trustee, who stood in the position of a bona fide purchaser pursuant to 11 U.S.C.S. § 544(a)(3) when the debtor filed a bankruptcy petition, could therefore avoid the mortgage pursuant to § 544(a). Schlarman v. SunTrust Mortg., Inc. (In re Helvey), 2006 Bankr. LEXIS 1619 (Bankr. E.D. Ky. Aug. 2, 2006).

Mortgage was defective under KRS 423.130 where the certificate of acknowledgment did not identify the debtors as the persons who acknowledged the mortgage. Baker v. CIT Group/Consumer Fin. Inc. (In re Hastings), 353 B.R. 513, 2006 Bankr. LEXIS 2908 (Bankr. E.D. Ky. 2006 ).

Where a mortgage was not properly acknowledged in that the notary was not present to certify that the debtors appeared before her when they signed the mortgage, the defective mortgage was not saved by the 2006 amendment to KRS 382.270 . The amendment did not apply retroactively to deprive the Trustee of his status as a bona fide purchaser as of the date of filing of the bankruptcy. Spradlin v. U.S. Bank N.A., N.D. (In re Williams), 2006 Bankr. LEXIS 3020 (Bankr. E.D. Ky. Nov. 9, 2006).

A mortgage was not recordable when it contained an attestation clause without the requisite language set forth in KRS 423.130 . However, subsequent parties were placed on inquiry notice of the creditors’ underlying equitable interest in the property when the creditors filed a valid lis pendens concerning the property and the mortgage. Johnson v. CIT Group/Consumer Fin., Inc. (In re Franklin), 2006 Bankr. LEXIS 3738 (Bankr. E.D. Ky. Jan. 25, 2006).

Creditor was granted summary judgment on a Chapter 7 trustee’s adversary proceeding to avoid a mortgage and sell the debtors’ real estate for the benefit of the bankruptcy estate because, despite a defective notarial acknowledgment under KRS 423.130 , the creditor’s properly executed and recorded a lis pendens notice, filed of record prior to the Chapter 7 proceeding, and provided constructive notice to subsequent purchasers and creditors, including the bankruptcy trustee, of its own contents and inquiry notice of the prior equitable interest of the creditor in the debtors’ property. Gardner v. Chase Home Fin., LLC (In re Patton), 2006 Bankr. LEXIS 4471 (Bankr. E.D. Ky. Feb. 24, 2006).

Chapter 13 Trustee could avoid creditor’s mortgage where the mortgage was defective under the provisions of KRS 423.130 because the certificate of acknowledgment did not identify the debtors as the persons who acknowledged the mortgage. Creditor could not rely on an amendment to KRS 382.270 as a defense because the amended KRS 382.270 did not apply retroactively. Burden v. CIT Group/Consumer Fin., Inc. (In re Armstrong), 366 B.R. 716, 2007 Bankr. LEXIS 1337 (Bankr. E.D. Ky. 2007 ).

Even though a mortgage executed by a bankruptcy debtor was recorded, the certificate of acknowledgment was defective under KRS 423.130 since it did not identify the debtor as the party executing the mortgage; thus, the defective acknowledgment was insufficient to provide constructive notice of the mortgage to the bankruptcy trustee, and the mortgage was avoidable by the trustee in the capacity of a bona fide purchaser under 11 USCS § 544(a). Select Portfolio Servs. v. Burden (In re Trujillo), 378 B.R. 526, 2007 Bankr. LEXIS 3786 (B.A.P. 6th Cir. 2007).

It was not error for a bankruptcy court to find that an acknowledgement on a creditor’s mortgage document was defective and that the mortgage could be avoided by a trustee pursuant to 11 USCS § 544 because the acknowledgement did not comply with the requirements of KRS 423.130 that were in effect at the time when the notary paragraph stated only “acknowledged before me” and did not state the names of the signors or the date signed. Burden v. CIT Group/Consumer Finance Inc. (In re Wilson), 2007 Bankr. LEXIS 3800 (B.A.P. 6th Cir. Nov. 14, 2007).

Mortgage’s certificate of acknowledgement, which did not contain the words “acknowledged before me,” did not substantially comply with KRS 423.130 and KRS 423.150 because it failed to establish that the president of the corporate borrower signed the instrument on behalf of the corporation by proper authority as required by KRS 423.150 (3)(b). Kendrick v. CIT Small Bus. Lending Corp. (In re Gruseck & Son), 2008 Bankr. LEXIS 1030 (B.A.P. 6th Cir. Apr. 16, 2008).

Where a debtor executed a mortgage on real property in favor of a creditor, but the certificate of acknowledgment did not contain the identity of the debtor as the person who acknowledged the mortgage or the date, as required by KRS 423.130 , the mortgage was properly avoided pursuant to 11 USCS § 544(a) because it did not provide constructive notice to a subsequent creditor, bona fide purchaser, or bankruptcy trustee. Countrywide Home Loans, Inc. v. Gardner (In re Henson), 2008 Bankr. LEXIS 1953 (B.A.P. 6th Cir. July 9, 2008).

Mortgage executed by debtors in favor of defendants was valid, even assuming without deciding that the acknowledgments were defective, because the mortgage was lodged by the county clerk and any defect in the acknowledgments did not have the effect of depriving creditors and the Chapter 7 trustee of constructive notice. Lassman v. Short (In re Foley), 2016 Bankr. LEXIS 226 (Bankr. D. Mass. Jan. 22, 2016).

2.Valid Acknowledgement.

Where there was no question that the debtors appeared before a notary who knew or had sufficient evidence of their identities, the words “subscribed and sworn to before me” in a mortgage were the substantial equivalent in form and definition to the words “acknowledged before me” and substantially complied with KRS 423.130 , KRS 423.140 , and KRS 423.150 . Dunlap v. Commonwealth Cmty. Bank (In re Phelps), 341 B.R. 848, 2006 Bankr. LEXIS 905 (Bankr. W.D. Ky. 2006 ).

Notes to Unpublished Decisions

1.Defective Acknowledgement.

Unpublished decision: Chapter 13 trustee could avoid a mortgage given by the debtors to the creditors because the notary certificate in the mortgage did not comply with KRS 423.130 and therefore did not provide the notice required to bona fide purchasers under KRS 382.270 , because the notary did not identify who signed the mortgage in the certificate of acknowledgment. Wilson v. CIT Group/Consumer Fin., Inc. (In re Wilson), 318 Fed. Appx. 354, 2009 FED App. 0212N, 2009 U.S. App. LEXIS 6050 (6th Cir. Ky.), amended, reprinted, 2007 FED App. 06447P, 2009 U.S. App. LEXIS 6433 (6th Cir. Ky. 2009 ).

Unpublished decision: KRS 61.060 did not apply to a mortgage when the notary acknowledgment was not facially valid under the requirements of KRS 423.130 . Wilson v. CIT Group/Consumer Fin., Inc. (In re Wilson), 318 Fed. Appx. 354, 2009 FED App. 0212N, 2009 U.S. App. LEXIS 6050 (6th Cir. Ky.), amended, reprinted, 2007 FED App. 06447P, 2009 U.S. App. LEXIS 6433 (6th Cir. Ky. 2009 ).

Unpublished decision: Based upon the plain meaning of KRS 423.130 , as well as Sixth Circuit caselaw, a notary had to identify who signed the mortgage in the Certificate of Acknowledgment. Therefore, the bankruptcy court and the Bankruptcy Appellate Panel correctly concluded that the mortgage did not provide constructive notice under KRS 382.270 to subsequent purchasers or creditors because it was not properly acknowledged under Kentucky law and was consequently subject to avoidance by the trustee pursuant to 11 U.S.C.S. § 544, and that it should have been preserved for the benefit of the estate pursuant to 11 U.S.C.S. § 551; accordingly, the court affirmed the order of the bankruptcy court granting summary judgment to the trustee. Burden v. CIT Group/Consumer Fin., Inc. (In re Wilson), 2007 FED App. 06447P, 2009 U.S. App. LEXIS 6433 (6th Cir. Ky. Mar. 19, 2009).

Research References and Practice Aids

Kentucky Bench & Bar.

A Defective Acknowledgement: Avoiding a Recorded Mortgage in Bankruptcy, Vol. 69, No. 3, May 2005, Ky. Bench & Bar 5.

423.140. Recognition of certificate of acknowledgment.

The form of a certificate of acknowledgment used by a person whose authority is recognized under KRS 423.110 shall be accepted in this state if:

  1. The certificate is in a form prescribed by the laws or regulations of this state;
  2. The certificate is in a form prescribed by the laws or regulations applicable in the place in which the acknowledgment is taken; or
  3. The certificate contains the words “acknowledged before me,” or their substantial equivalent.

History. Enact. Acts. 1970, ch. 131, § 4, July 1, 1970.

NOTES TO DECISIONS

1.Valid Acknowledgment.

Where there was no question that the debtors appeared before a notary who knew or had sufficient evidence of their identities, the words “subscribed and sworn to before me” in a mortgage were the substantial equivalent in form and definition to the words “acknowledged before me” and substantially complied with KRS 423.130 , KRS 423.140 , and KRS 423.150 . Dunlap v. Commonwealth Cmty. Bank (In re Phelps), 341 B.R. 848, 2006 Bankr. LEXIS 905 (Bankr. W.D. Ky. 2006 ).

Notes to Unpublished Decisions

1.Application.

Unpublished decision: Provisions of KRS 423.140 and 423.150 did not apply to validate a defective acknowledgment clause in a notary certificate on a mortgage when the acknowledgement did not specify the names of the parties who signed the mortgage document. Wilson v. CIT Group/Consumer Fin., Inc. (In re Wilson), 318 Fed. Appx. 354, 2009 FED App. 0212N, 2009 U.S. App. LEXIS 6050 (6th Cir. Ky.), amended, reprinted, 2007 FED App. 06447P, 2009 U.S. App. LEXIS 6433 (6th Cir. Ky. 2009 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Short Form Certificate of Acknowledgment, Form 21.04.

423.150. Certificate of acknowledgment.

The words “acknowledged before me” mean:

  1. That the person acknowledging appeared before the person taking the acknowledgment;
  2. That he acknowledged he executed the instrument;
  3. That, in the case of:
    1. A natural person, he executed the instrument for the purposes therein stated;
    2. A corporation, the officer or agent acknowledged he held the position or title set forth in the instrument and certificate, he signed the instrument on behalf of the corporation by proper authority, and the instrument was the act of the corporation for the purpose therein stated;
    3. A partnership, the partner or agent acknowledged he signed the instrument on behalf of the partnership by proper authority and he executed the instrument as the act of the partnership for the purpose therein stated;
    4. A person acknowledging as principal by an attorney in fact, he executed the instrument by proper authority as the act of the principal for the purposes therein stated;
    5. A person acknowledging as a public officer, trustee, administrator, guardian, or other representative, he signed the instrument by proper authority and he executed the instrument in the capacity and for the purposes therein stated; and
  4. That the person taking the acknowledgment either knew or had satisfactory evidence that the person acknowledging was the person named in the instrument or certificate.

History. Enact. Acts 1970, ch. 131, § 5, July 1, 1970.

NOTES TO DECISIONS

Analysis

1.Defective Acknowledgement.

Summary judgment was granted to a trustee because she could avoid a corporation’s mortgage lien on a mobile home since the trustee had priority as a bona fide purchaser pursuant to 11 USCS § 544(a)(3), since the mortgage did not meet the requirements of KRS 423.130 and was therefore defectively acknowledged, and because KRS 423.150 did not provide any relief to the corporation. Coleman v. Altegra Credit Co. (In re Coleman), 2004 Bankr. LEXIS 967 (Bankr. E.D. Ky. July 21, 2004).

Mortgage’s certificate of acknowledgement, which did not contain the words “acknowledged before me,” did not substantially comply with KRS 423.130 and KRS 423.150 because it failed to establish that the president of the corporate borrower signed the instrument on behalf of the corporation by proper authority as required by KRS 423.150 (3)(b). Kendrick v. CIT Small Bus. Lending Corp. (In re Gruseck & Son), 2008 Bankr. LEXIS 1030 (B.A.P. 6th Cir. Apr. 16, 2008).

2.Valid Acknowledgement.

Where there was no question that the debtors appeared before a notary who knew or had sufficient evidence of their identities, the words “subscribed and sworn to before me” in a mortgage were the substantial equivalent in form and definition to the words “acknowledged before me” and substantially complied with KRS 423.130 , KRS 423.140 , and KRS 423.150 . Dunlap v. Commonwealth Cmty. Bank (In re Phelps), 341 B.R. 848, 2006 Bankr. LEXIS 905 (Bankr. W.D. Ky. 2006 ).

Notes to Unpublished Decisions

1.Application.

Unpublished decision: Provisions of KRS 423.140 and 423.150 did not apply to validate a defective acknowledgment clause in a notary certificate on a mortgage when the acknowledgement did not specify the names of the parties who signed the mortgage document. Wilson v. CIT Group/Consumer Fin., Inc. (In re Wilson), 318 Fed. Appx. 354, 2009 FED App. 0212N, 2009 U.S. App. LEXIS 6050 (6th Cir. Ky.), amended, reprinted, 2007 FED App. 06447P, 2009 U.S. App. LEXIS 6433 (6th Cir. Ky. 2009 ).

423.160. Short forms of acknowledgment.

The forms of acknowledgment set forth in this section may be used and are sufficient for their respective purposes under any law of this state. The forms shall be known as “Statutory Short Forms of Acknowledgment” and may be referred to by that name. The authorization of the forms in this section does not preclude the use of other forms.

  1. For an individual acting in his own right: State of County of The foregoing instrument was acknowledged before me this (date) by (name of person acknowledged). (Signature of person taking acknowledgment) (Title or rank) (Serial number, if any) (2) For a corporation: State of County of The foregoing instrument was acknowledged before me this (date) by (name of officer or agent, title of officer or agent) of (name of corporation acknowledging) a (state or place of incorporation) corporation, on behalf of the corporation. (Signature of person taking acknowledgment) (Title or rank) (Serial number, if any) (3) For a partnership: State of County of The foregoing instrument was acknowledged before me this (date) by (name of acknowledging partner or agent), partner (or agent) on behalf of (name of partnership), a partnership. (Signature of person taking acknowledgment) (Title or rank) (Serial number, if any) (4) For an individual acting as principal by an attorney in fact: State of County of The foregoing instrument was acknowledged before me this (date) by (name of attorney in fact) as attorney in fact on behalf of (name of principal). (Signature of person taking acknowledgment) (Title or rank) (Serial number, if any) (5) By any public officer, trustee, or personal representative: State of County of The foregoing instrument was acknowledged before me this (date) by (name and title of position). (Signature of person taking acknowledgment) (Title or rank) (Serial number, if any)

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History. Enact. Acts 1970, ch. 131, § 6, July 1, 1970.

NOTES TO DECISIONS

1.Generally.

In response to the trustee’s argument that the language used in the notary acknowledgement did not comply with the requirements of KRS 423.160 , the Farmers Home Administration responded that the statute contained short forms of acknowledgment and did not preclude the use of other forms, and that usage of this statutory language in an acknowledgement is optional. The court agreed with these contentions. Rogan v. Farmers Home Admin. (In re Tuttle), 2012 Bankr. LEXIS 3658 (Bankr. E.D. Ky. Aug. 6, 2012).

Cited in:

Dunlap v. Commonwealth Cmty. Bank (In re Phelps), 341 B.R. 848, 2006 Bankr. LEXIS 905 (Bankr. W.D. Ky. 2006 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Short Form Certificate of Acknowledgment, Form 21.04.

423.170. Acknowledgments not affected by KRS 423.110 to 423.190.

A notarial act performed prior to July 1, 1970, is not affected by KRS 423.110 to 423.190 . KRS 423.110 to 423.190 provide an additional method of proving notarial acts. Nothing in KRS 423.110 to 423.190 diminishes or invalidates the recognition accorded to notarial acts by other laws or regulations of this state.

History. Enact. Acts 1970, ch. 131, § 7, July 1, 1970.

423.180. Uniformity of interpretation.

KRS 423.110 to 423.190 shall be so interpreted as to make uniform the laws of those states which enact it.

History. Enact. Acts 1970, ch. 131, § 8, July 1, 1970.

423.190. Short title.

KRS 423.110 to 423.190 may be cited as the “Uniform Recognition of Acknowledgments Act.”

History. Enact. Acts 1970, ch. 131, § 9, July 1, 1970.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Notary Public, § 21.00.

423.200. Admission of documents to the public record.

Notwithstanding any other provision of law, any certificate of an acknowledgment given and certified as provided by KRS 423.300 to 423.455 or as provided by those sections and other provisions of law, together with the instrument acknowledged, may be admitted to the public record provided for the type of instrument so acknowledged, and any instrument required to be sworn to or affirmed in order to be recorded may be admitted to record upon a jurat recognized under the provisions of KRS 423.300 to 423.455 .

HISTORY: Enact. Acts 1972, ch. 170, § 1, March 25, 1972; 2019 ch. 86, § 37, effective January 1, 2020.

NOTES TO DECISIONS

1.Mechanics’ and Materialmen’s Liens.

Where the plaintiffs sought to enforce certain mechanics’ and materialmen’s liens which had been acknowledged, but not “sworn and subscribed to” as required by subsection (1) of KRS 376.080 , the liens were invalid; the language of KRS 376.080 is mandatory, and the language of this section, which removed the requirement that instruments be sworn in order to be recorded, did not lift the requirement that mechanics’ liens must be sworn to in order to be valid, because the specific language of KRS 376.080, concerning perfection of a lien, governs over the general provisions of this section. Hub City Wholesale Electric, Inc. v. Mik-Beth Electrical Co., 621 S.W.2d 242, 1981 Ky. App. LEXIS 288 (Ky. Ct. App. 1981).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

423.300. Definitions for KRS 423.300 to 423.455.

As used in KRS 423.300 to 423.455 :

  1. “Acknowledgment” means a declaration by an individual before a notarial officer that the individual has signed a record for the purpose stated in the record and, if the record is signed in a representative capacity, that the individual signed the record with proper authority and signed it as the act of the individual or entity identified in the record;
  2. “Acknowledged before me” or “appears before me” means being in:
    1. The same physical location as another individual person and close enough to see, hear, communicate with, and exchange credentials with that person; or
    2. A different physical location from another person but able to see, hear, and communicate with that person by means of communication technology;
  3. “Communication technology” means an electronic device or process that:
    1. Allows a notary public and a remotely located individual to communicate with each other simultaneously by sight and sound; and
    2. When necessary and consistent with other applicable law, facilitates communication with a remotely located individual with a vision, hearing, or speech impairment;
  4. “Credential” means a non-expired record issued by a government which bears an individual’s photo and which evidences an individual’s identity;
  5. “Credential analysis” means a process or service that meets the standards adopted under KRS 423.355(7) and 423.415 by which a third person provides confidence as to the validity of a government-issued identification credential through review of public and proprietary data sources;
  6. “Dynamic knowledge-based authentication assessment” means an identity assessment that is based on a set of questions formulated from public or private data sources for which the signer of an electronic record has not provided a prior answer;
  7. “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities;
  8. “Electronic notarization” means a notarial act performed with respect to an electronic record by means of communication technology that meets the standards adopted under KRS 423.355(7) and 423.415 ;
  9. “Electronic signature” means an electronic symbol, sound, or process attached to or logically associated with a record and executed or adopted by an individual with the intent to sign the record;
  10. “Foreign state” means a jurisdiction other than the United States, a state, or a federally recognized Indian tribe;
  11. “Identity proofing” means, in the use of communication technology, a process or service that meets standards adopted under KRS 423.355(7) and 423.415 by which a third person provides confidence as to the identity of an individual through review of personal information from public or proprietary data sources;
  12. “In a representative capacity” means acting as:
    1. An authorized officer, agent, partner, trustee, or other representative for a person other than an individual;
    2. A public officer, personal representative, guardian, or other representative, in the capacity stated in a record;
    3. An agent or attorney-in-fact for a principal; or
    4. An authorized representative of another in any other capacity;
  13. “Notarial act” means an act, whether performed with respect to a tangible or electronic record, that a notarial officer may perform under KRS 423.310 and any other law of the Commonwealth;
  14. “Notarial officer” means a notary public or other individual authorized to perform a notarial act;
  15. “Notary public” means an individual commissioned to perform a notarial act by the Secretary of State. This term does not include other notarial officers who may perform a notarial act in this state;
  16. “Official stamp” means a physical image affixed to or embossed on a tangible record or an electronic image attached to or logically associated with an electronic record, including an official notary seal;
  17. “Online notary public” means a notary public who has registered with the Secretary of State, pursuant to any standards and rules adopted under KRS 423.390 and 423.415 , to perform electronic notarizations under KRS 423.300 to 423.455 ;
  18. “Outside the United States” means a location outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory, insular possession, or other location subject to the jurisdiction of the United States;
  19. “Person” means an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity;
  20. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
  21. “Remotely located individual” means an individual who is not in the physical presence of the notary public who performs a notarial act or is appearing remotely before the notary;
  22. “Remote presentation” means transmission to an online notary public through communication technology of an image of a government-issued identification credential that is of sufficient quality to enable the online notary public to identify the individual seeking the online notary public’s services and to perform credential analysis;
  23. “Sign” means, with present intent to authenticate or adopt a record, to:
    1. Execute or adopt a tangible symbol; or
    2. Attach to or logically associate with the record an electronic symbol, sound, or process;
  24. “Signature” means a tangible symbol or an electronic signature that evidences the signing of a record;
  25. “Stamping device” means:
    1. A physical device capable of affixing to or embossing on a tangible record an official stamp; or
    2. An electronic device or process capable of attaching to or logically associating with an electronic record an official stamp;
  26. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States; and
  27. “Verification on oath or affirmation” means a declaration, made by an individual on oath or affirmation before a notarial officer, that a statement in a record is true.

HISTORY: 2019 ch. 86, § 1, effective January 1, 2020.

423.305. Application of KRS 423.300 to 423.455.

KRS 423.300 to 423.455 applies to a notarial act performed on or after January 1, 2020.

HISTORY: 2019 ch. 86, § 2, effective January 1, 2020.

423.310. Notarial acts — Tangible and electronic records — Online notary — Prohibited acts — Tangible copy of electronic record.

  1. A notarial officer may perform the following notarial acts:
    1. Take acknowledgments;
    2. Administer oaths and affirmations;
    3. Take verifications of statements on oath or affirmation;
    4. Certify that a copy of any document, other than a document that is recorded or in the custody of any federal, state, or local governmental agency, office, or court, is a true copy;
    5. Certify depositions of witnesses;
    6. Make or note a protest of a negotiable instrument;
    7. Witness or attest signatures; and
    8. Perform any notarial act authorized by a law of the Commonwealth other than KRS 423.300 to 423.455 .
  2. A notary public may perform any of the notarial acts listed in subsection (1) of this section with respect to tangible records and electronic records.
  3. Upon registration with the Secretary of State, an online notary may perform any of the notarial acts listed in subsection (1) of this section as an electronic notarization.
  4. A notarial officer shall not perform a notarial act with respect to a record to which the notarial officer or the notarial officer’s spouse or other member of the notarial officer’s immediate family is a party, or in which any of those individuals has a direct beneficial interest. A notarial act performed in violation of this subsection is voidable.
  5. A notarial officer may certify that a tangible copy of an electronic record is an accurate copy of the electronic record.

HISTORY: 2019 ch. 86, § 3, effective January 1, 2020.

423.315. Determination of individual’s identity and signature — Protest of negotiable instrument.

A notarial officer who takes an acknowledgment of a record, takes a verification of a statement on oath or affirmation, or witnesses or attests to a signature, shall determine, from personal knowledge or satisfactory evidence of the identity of the individual, that the individual appearing before the notarial officer has the identity claimed and that the signature on the record is the signature of the individual. A notarial officer who makes or notes a protest of a negotiable instrument shall determine the matters as set forth in KRS 355.3-505(2).

HISTORY: 2019 ch. 86, § 4, effective January 1, 2020.

423.320. Personal appearance before notarial officer.

If a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature shall appear personally before the notarial officer.

HISTORY: 2019 ch. 86, § 5, effective January 1, 2020.

423.325. Personal knowledge and satisfactory evidence of identity — Use of communication technology — Additional information.

  1. A notarial officer has personal knowledge of the identity of an individual appearing before the officer if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed.
  2. A notarial officer has satisfactory evidence of the identity of an individual appearing before the officer if the officer can identify the individual by means of one (1) of the following credentials:
    1. A non-expired passport, driver’s license, or government-issued identification card;
    2. Another current form of government identification issued to an individual, which contains the signature and a photograph of the individual, and is satisfactory to the notarial officer; or
    3. If the means presented in paragraphs (a) and (b) of this subsection are unavailable, verification on oath or affirmation of a credible witness personally appearing before the notarial officer and known to the notarial officer or whom the notarial officer can identify on the basis of a current passport, driver’s license, or government-issued identification card.
  3. Notwithstanding subsection (2) of this section, in performing an electronic notarization, an online notary public has satisfactory evidence of the identity of an individual appearing before the online notary public if the online notary public can identify the individual through the use of communication technology that meets the requirements of this section and the administrative regulations promulgated by the Secretary of State under KRS 423.355(7) and 423.415 , and by the following:
    1. The online notary public’s personal knowledge of the individual; or
    2. Each of the following:
      1. Remote presentation by the individual of a government-issued identification credential specified in this section that contains the signature and photograph of the individual;
      2. Credential analysis of the identification credential described by subparagraph 1. of this paragraph; and
      3. Identity proofing of the individual, which may include a dynamic knowledge-based authentication assessment; or
    3. A valid public key certificate that complies with the administrative regulations promulgated by the Secretary of State pursuant to KRS 423.415 .
  4. A notarial officer may require an individual to provide additional information or identification credentials necessary to assure the notarial officer of the identity of the individual.

HISTORY: 2019 ch. 86, § 6, effective January 1, 2020.

423.330. Refusal to perform notarial act.

  1. A notarial officer may refuse to perform a notarial act if the officer is not satisfied that:
    1. The individual executing the record is competent or has the capacity to execute the record; or
    2. The individual’s signature is knowingly and voluntarily made.
  2. A notarial officer may refuse to perform a notarial act unless refusal is prohibited by law other than KRS 423.300 to 423.455 .

HISTORY: 2019 ch. 86, § 7, effective January 1, 2020.

423.335. Signature by proxy.

If an individual is physically unable to sign a record, the individual may direct another individual, other than the notarial officer, to sign the individual’s name on the record by proxy, in the presence of two (2) witnesses unaffected by the record, one (1) of whom may be the individual who signs, by proxy, on behalf of the individual physically unable to sign. Both witnesses shall sign their own names beside the proxy signature, and the notarial officer shall insert “Signature affixed by (name of proxy signer) at the direction of (name of individual) and in the presence of (names and addresses of the two witnesses)” or words of similar import.

HISTORY: 2019 ch. 86, § 8, effective January 1, 2020.

423.340. Who may perform notarial act — Effect of signature and title — Powers of county clerk.

  1. A notarial act may be performed in this state by:
    1. A notary public of this state; or
    2. A county clerk of this state.
  2. The signature and title of an individual performing a notarial act in this state are prima facie evidence that the signature is genuine and that the individual holds the designated title.
  3. The signature and title of a notarial officer described in this section conclusively establishes the authority of the notarial officer to perform the notarial act.
  4. A county clerk shall have the powers of a notarial officer in the exercise of the official functions of the office of clerk within his or her county, and the official actions of the county clerk shall not require the witness or signature of a notary public.

HISTORY: 2019 ch. 86, § 9, effective January 1, 2020.

423.345. Effect of notarial act performed in another state, under authority of tribe, or under authority of federal law.

    1. A notarial act performed in another state has the same effect under the law of this state as if performed by a notarial officer of this state, if the act performed in that state is performed by: (1) (a) A notarial act performed in another state has the same effect under the law of this state as if performed by a notarial officer of this state, if the act performed in that state is performed by:
      1. A notary public of that state;
      2. A judge, clerk, or deputy clerk of a court of that state; or
      3. Any other individual authorized by the law of that state to perform the notarial act.
    2. The signature and title of an individual performing a notarial act in another state are prima facie evidence that the signature is genuine and that the individual holds the designated title.
    3. The signature and title of a notarial officer described in paragraph (a) or (b) of this subsection conclusively establish the authority of the officer to perform the notarial act.
    1. A notarial act performed under the authority and in the jurisdiction of a federally recognized Indian tribe has the same effect as if performed by a notarial officer of this state, if the act performed in the jurisdiction of the tribe is performed by: (2) (a) A notarial act performed under the authority and in the jurisdiction of a federally recognized Indian tribe has the same effect as if performed by a notarial officer of this state, if the act performed in the jurisdiction of the tribe is performed by:
      1. A notary public of the tribe;
      2. A judge, clerk, or deputy clerk of a court of the tribe; or
      3. Any other individual authorized by the law of the tribe to perform the notarial act.
    2. The signature and title of an individual performing a notarial act under the authority and in the jurisdiction of a federally recognized Indian tribe are prima facie evidence that the signature is genuine and that the individual holds the designated title.
    3. The signature and title of a notarial officer described in paragraph (a) or (b) of this subsection conclusively establish the authority of the notarial officer to perform the notarial act.
    1. A notarial act performed under the authority of federal law has the same effect under the law of this state as if performed by a notarial officer of this state, if the act performed under federal law is performed by: (3) (a) A notarial act performed under the authority of federal law has the same effect under the law of this state as if performed by a notarial officer of this state, if the act performed under federal law is performed by:
      1. A judge, clerk, or deputy clerk of a court;
      2. An individual in military service or performing duties under the authority of military service who is authorized to perform notarial acts under federal law;
      3. An individual designated a notarizing officer by the United States Department of State for performing notarial acts overseas; or
      4. Any other individual authorized by federal law to perform the notarial act.
    2. The signature and title of an individual acting under federal authority and performing a notarial act are prima facie evidence that the signature is genuine and that the individual holds the designated title.
    3. The signature and title of an officer described in paragraph (a) or (b) of this subsection conclusively establish the authority of the officer to perform the notarial act.

HISTORY: 2019 ch. 86, § 10, effective January 1, 2020.

423.350. Effect of notarial act performed under authority of foreign state or international governmental organization — Establishing authority of officer and genuineness of signature.

  1. In this section, “foreign state” means a government other than the United States, a state, or a federally recognized Indian tribe.
  2. If a notarial act is performed under the authority and in the jurisdiction of a foreign state or constituent unit of the foreign state or is performed under the authority of a multinational or international governmental organization, the act has the same effect under the law of this state as if performed by a notarial officer of this state.
  3. If the title of office and indication of authority to perform notarial acts in a foreign state appears in a digest of foreign law or in a list customarily used as a source for that information, the authority of an officer with that title to perform notarial acts is conclusively established.
  4. The signature and official stamp of an individual holding an office described in subsection (3) of this section are prima facie evidence that the signature is genuine and the individual holds the designated title.
  5. An apostille in the form prescribed by the Hague Convention of October 5, 1961, and issued by a foreign state party to the Convention conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.
  6. A consular authentication issued by an individual designated by the United States Department of State as a notarizing officer for performing notarial acts overseas and attached to the record with respect to which the notarial act is performed conclusively establishes that the signature of the notarial officer is genuine and that the officer holds the indicated office.

HISTORY: 2019 ch. 86, § 11, effective January 1, 2020.

423.355. Online notary public — Electronic notarization — Refusal to perform notarial act — Use of communication technology — Registration — Administrative regulations — Application of state law.

  1. An online notary public:
    1. Shall be commissioned as a notary public pursuant to KRS 423.300 to 423.455 and has the powers and duties of a traditional notary public as provided by KRS 423.300 to 423.455 ;
    2. May perform notarial acts as provided by KRS 423.300 to 423.455 in addition to performing electronic notarizations; and
    3. May, upon registration with the Secretary of State as an online notary public pursuant to KRS 423.390 , perform electronic notarizations authorized under this section.
  2. An online notary public may perform an electronic notarization provided the online notary public is physically located in this state while performing the notarial act and if:
    1. The online notary public has:
      1. Personal knowledge of the identity of the individual pursuant to KRS 423.325 ; or
      2. Satisfactory evidence of the identity of the individual pursuant to KRS 423.325 (3); and
    2. At the time of electronic notarization:
      1. The individual appearing before the online notary public is located within this state, or elsewhere within the geographic boundaries of a state of the United States; or
      2. The individual is located outside the United States and:
        1. The individual confirms to the online notary public that the record is to be filed with or relates to a matter before a court, governmental entity, public official, or other entity located in the territorial jurisdiction of the United States, or relates to property located in the United States, or relates to a transaction substantially connected to the United States; and
        2. To the online notary public’s actual knowledge, the act of making the statement or signing the record is not prohibited by the jurisdiction in which the individual is located.
  3. In addition to the authority of a notary public to refuse to perform a notarial act pursuant to KRS 423.330 , a notary public may refuse to perform a notarial act under this section if the notary public is not satisfied that a notarial act performed would conform with subsection (2)(b)2. of this section.
  4. If a notarial act involves a statement made in or a signature executed on an electronic record by an individual by means of communication technology, the certificate of notarial act required by KRS 423.360 shall indicate that the individual making the statement or signing the record appeared before the online notary public by means of communication technology.
  5. For each electronic notarization, the online notary public shall:
    1. Include, in addition to the journal entries required under KRS 423.380 , an indication of whether an individual making a statement or executing a signature which is the subject of the notarial act appeared before the online notary public in the notary’s physical presence or by means of communication technology;
    2. Create a complete recording of the conference session containing the audio-video communication between the online notary public and individual appearing before the online notary public, in accordance with the standards adopted under subsection (7) of this section and KRS 423.415 ; and
    3. Maintain the recording described by paragraph (b) of this subsection for at least ten (10) years after the date of the applicable transaction or proceeding or for the period of retention of a notary public’s journal pursuant to KRS 423.380 , whichever is longer.
  6. Before an online notary public performs any electronic notarizations under this section, the online notary public shall register with the Secretary of State pursuant to KRS 423.390 .
  7. The Secretary of State may promulgate administrative regulations regarding the performance of electronic notarizations. The administrative regulations may:
    1. Prescribe the means of performing a notarial act involving communication technology;
    2. Establish standards for communication technology and the process of credential analysis and identity proofing;
    3. Establish procedures for the requirements of providers of communication technology; and
    4. Establish standards and requirements for the retention of a video and audio copy of the performance of a notarial act.
  8. Regardless of the physical location of the individual at the time of the notarial act, the validity of an electronic notarization performed by an online notary public commissioned in this state shall be determined by applying the laws of this state.
  9. An online notary public shall take reasonable steps to ensure that:
    1. Any registered device or credential used to create an electronic signature is current and has not been revoked or terminated by the device’s or credential’s issuing or registering authority;
    2. The audio-video communication used in an electronic notarization is secure from unauthorized interception or use;
    3. A backup exists for all information pertaining to an electronic notarization required to be kept by administrative regulations promulgated pursuant to subsection (7) of this section and KRS 423.415 ; and
    4. The backup described by paragraph (c) of this subsection is secure from unauthorized use.

HISTORY: 2019 ch. 86, § 12, effective January 1, 2020.

423.360. Certificate of notarial act.

  1. A notarial act shall be evidenced by a certificate. The certificate shall:
    1. Be executed contemporaneously with the performance of the notarial act;
    2. Be signed and dated by the notarial officer and, if the notarial officer is a notary public, be signed in the same manner as on file with the Secretary of State;
    3. Identify the jurisdiction in which the notarial act is performed;
    4. Contain the title of office and name of the notarial officer; and
    5. If the notarial officer is a notary public, indicate the commission number and date of expiration, if there is an expiration date, of the officer’s commission.
  2. If a notarial act is performed regarding a tangible record by a notarial officer, including a notary public, the certificate shall contain the information specified in paragraphs (b), (c), and (d) of subsection (1) of this section, along with the additional information in paragraph (e) of subsection (1) of this section, if the certificate is completed by a notary public. An official stamp may be affixed to or embossed on the certificate. If a notarial act regarding an electronic record is performed by a notarial officer, the certificate shall contain the information specified in paragraphs (b), (c), and (d) of subsection (1) of this section, along with the additional information in paragraph (e) of subsection (1) of this section if the certificate is completed by a notary public. An official stamp may be attached to or logically associated with the certificate.
  3. A certificate of a notarial act is sufficient if it meets the requirements of subsections (1) and (2) of this section and:
    1. Is in a short form set forth in KRS 423.365 ;
    2. Is in a form otherwise permitted by the laws of this state;
    3. Is in a form permitted by the law applicable in the jurisdiction in which the notarial act was performed; or
    4. Sets forth the actions of the notarial officer and the actions are sufficient to meet the requirements of the notarial act as provided in KRS 423.300 to 423.455 or other law of this state other than KRS 423.300 to 423.455 .
  4. By executing a certificate of a notarial act, a notarial officer certifies that the officer has complied with the requirements and made the determinations specified in KRS 423.300 to 423.455 .
  5. A notarial officer may not affix the officer’s signature to, or logically associate it with, a certificate until the notarial act has been performed.
  6. If a notarial act is performed regarding a tangible record, a certificate shall be part of, or securely attached to, the record. If a notarial act is performed regarding an electronic record, the certificate shall be affixed to, or logically associated with, the electronic record. If the Secretary of State has established standards pursuant to KRS 423.415 for attaching, affixing, or logically associating the certificate, the process shall conform to the standards.

HISTORY: 2019 ch. 86, § 13, effective January 1, 2020.

423.365. Short-form certificate.

The Secretary of State shall promulgate short-form certificates for notarial acts which shall contain space for the information required by KRS 423.360(1) and (2), and include a space to indicate the manner of notarization of the document.

HISTORY: 2019 ch. 86, § 14, effective January 1, 2020.

423.370. Stamp.

A notary public commissioned pursuant to KRS 423.300 to 423.455 is not required to use a stamp. If a notary public chooses to use a stamp, the notary public shall have an official stamp which shall:

  1. Include the notary public’s name, title, jurisdiction, commission number, and expiration date; and
  2. Be capable of being copied together with the record to which it is affixed or attached or with which it is logically associated.

HISTORY: 2019 ch. 86, § 15, effective January 1, 2020.

423.375. Security of stamping device — Rendering unusable when no longer valid — Lost or stolen device.

  1. A notary public is responsible for the security of the notary public’s stamping device and may not allow another individual to use the device to perform a notarial act. On resignation from, or the revocation or expiration of, the notary public’s commission, or on the expiration of the date set forth in the stamping device, if any, the notary public shall disable the stamping device by destroying, defacing, damaging, erasing, or securing it against use in a manner that renders it unusable. On the death or adjudication of incompetency of a notary public, the notary public’s personal representative or guardian or any other person knowingly in possession of the stamping device shall render it unusable by destroying, defacing, damaging, erasing, or securing it against use in a manner that renders it unusable.
  2. If a notary public’s stamping device is lost or stolen, the notary public or the notary public’s personal representative or guardian shall notify promptly the Secretary of State on discovering that the device is lost or stolen.

HISTORY: 2019 ch. 86, § 16, effective January 1, 2020.

423.380. Journal of online notary public — Entries — Audio-visual recording — Lost or stolen journal — Retention and transmission — Custodian.

  1. An online notary public shall maintain a journal in which the online notary public chronicles all electronic notarizations that the online notary public performs. The online notary public shall retain the journal for ten (10) years after the performance of the last electronic notarization chronicled in the journal.
  2. The journal shall be created in an electronic format. An online notary public may maintain more than one (1) journal to chronicle electronic notarizations. The journal shall be maintained in an electronic format in a permanent, tamper-evident electronic format complying with administrative regulations promulgated pursuant to KRS 423.415 .
  3. An entry in a journal shall be made contemporaneously with performance of the notarial act and contain the following information:
    1. The date and time of the notarial act;
    2. A brief description of the record, if any, and type of notarial act as authorized in KRS 423.310 ;
    3. The full name and address of each individual for whom the notarial act is performed;
    4. If identity of the individual is based on personal knowledge, a statement to that effect;
    5. If identity of the individual is based on satisfactory evidence, a brief description of the method of identification and the identification and the means used as well as the date of issuance and expiration of any identification credential presented; and
    6. The fee, if any, charged by the online notary public.
  4. If a notarial act involves the use of communication technology, the notary public shall retain the audio-visual recording of the performance of the notarial act in compliance with both KRS 423.355(7) and the administrative regulations promulgated pursuant to KRS 423.415 .
  5. If a notary public’s journal is lost or stolen, the notary public promptly shall notify the Secretary of State on discovering that the journal is lost or stolen.
  6. On resignation from, or the revocation or suspension of, a notary public’s commission, the notary public shall retain the notary public’s journal in accordance with subsection (1) of this section.
  7. On the death or adjudication of incompetency of a current or former notary public, the notary public’s personal representative or guardian or any other person knowingly in possession of the journal shall transmit it to the Secretary of State or otherwise as directed in administrative regulations promulgated by the Secretary of State pursuant to KRS 423.415 .
  8. A notary public may designate a custodian to do any of the following:
    1. Maintain the journal required under subsection (1) of this section; or
    2. Retain an audio or visual recording of a notarial act required under subsection (4) of this section.

HISTORY: 2019 ch. 86, § 17, effective January 1, 2020.

423.385. Registration regarding electronic records and notarizations — Tamper-evident technology — Standards — Tangible copy of electronic record.

  1. A notary public shall register with the Secretary of State pursuant to KRS 423.390 if the notary public intends to perform notarial acts:
    1. With respect to electronic records where the individual will appear before the notary in the notary’s physical presence; or
    2. As an online notary public to perform electronic notarizations by means of communication technology.
  2. A notary public may select one (1) or more tamper-evident technologies to perform notarial acts in the physical presence of the individual signer with respect to electronic records, or to perform electronic notarizations. A person may not require a notary public to perform any notarial act with a technology that the notary public has not selected.
  3. If the Secretary of State has established standards respecting technology to perform notarial acts in the physical presence of the individual signer with respect to electronic records, or to perform electronic notarizations, the technology chosen by the notary public shall conform to those standards.
  4. A tangible copy of an electronic record containing a notarial certificate may be accepted as satisfying any requirement that a record accepted for recording be an original, if the notarial officer executing the notarial certificate certifies that the tangible copy is an accurate copy of the electronic record.

HISTORY: 2019 ch. 86, § 18, effective January 1, 2020.

423.390. Commission as notary public — Requirements — Oath and filing — Surety bond — Change of information — Renewal of commission — Administrative regulations — Registration.

  1. An individual qualified under subsection (2) of this section may apply to the Secretary of State for a commission as a notary public. The applicant shall comply with and provide the information required by administrative regulations promulgated by the Secretary of State and be accompanied by payment of the specified fee.
  2. An applicant for a commission as a notary public shall:
    1. Be at least eighteen (18) years of age;
    2. Be a citizen or permanent legal resident of the United States;
    3. Be a resident of or have a place of employment or practice in the county within this Commonwealth where the application is made;
    4. Be able to read and write English;
    5. Not be disqualified to receive a commission under KRS 423.395 ;
    6. Submit to the Secretary of State any application forms, information, disclosures, and verifications as are required by administrative regulations promulgated by the Secretary of State;
    7. Submit to the Secretary of State proof of having obtained the requisite surety bond required under subsection (4) of this section;
    8. Take an oath of office as set forth in in subsection (4) of this section; and
    9. Submit a fee payment, as specified in KRS 423.430 , made payable to the State Treasurer.
  3. On compliance with this section, the Secretary of State shall issue a commission as a notary public to an applicant for a term of four (4) years. The Secretary of State shall assign a unique commission number to each notary public, which same commission number shall continue to be assigned to the notary public in the event of the renewal or later issuance of another commission to the same individual notary public.
  4. Within thirty (30) days of receiving a notary public commission from the Secretary of State, the applicant shall appear in person to take an oath of office, submit an assurance in the form of a surety bond, and file the commission, all of which shall take place before the county clerk listed in the commission application. The applicant shall pay fees to the county clerk for filing the assurance and administering the oath as set forth in KRS 64.012 .
  5. The assurance required by this section shall be in the amount of one thousand dollars ($1,000) and shall be issued by a surety or other entity licensed or authorized to do business in this state. The assurance shall cover acts performed during the term of the notary public’s commission and shall be in the form prescribed by the Secretary of State. If a notary public violates the law with respect to notaries public in this state, the surety or issuing entity is liable under the assurance. The surety or issuing entity shall give thirty (30) days’ notice to the Secretary of State before canceling the assurance or of the assurance’s expiration if such expiration is prior to the date of expiration of the notary’s commission. A notary public may perform notarial acts in this state only during the period that a valid assurance is on file with the county clerk.
  6. A notarial officer may perform a notarial act in any county of the Commonwealth after filing the commission and assurance and taking the oath required by this section, and for so long as the notary public’s commission and surety bond are valid and in effect.
  7. If, at any time during his or her period of commission under this section, or period of registration under subsection (10) of this section, a notary public changes his or her mail or electronic mail address, county of residence, name, signature, electronic signature, or the technology or device used to perform notarial acts or to maintain his or her journal or to render electronic documents tamper-evident, the notary public shall, within ten (10) days after making the change, submit to the Secretary of State the changed information upon the form and containing all information required by the Secretary of State, along with a fee payment, as specified in KRS 423.430 , payable to the State Treasurer.
    1. Prior to the expiration of his or her commission period, a notary public may apply to the Secretary of State to renew his or her commission, and shall comply with the qualifications, renewal application filings, and other requirements then applicable to obtaining an original commission from the Secretary of State. The application for commission renewal shall be accompanied by a fee payment, as specified in KRS 423.430 , made payable to the State Treasurer. (8) (a) Prior to the expiration of his or her commission period, a notary public may apply to the Secretary of State to renew his or her commission, and shall comply with the qualifications, renewal application filings, and other requirements then applicable to obtaining an original commission from the Secretary of State. The application for commission renewal shall be accompanied by a fee payment, as specified in KRS 423.430 , made payable to the State Treasurer.
    2. If approved, the Secretary of State shall issue a renewed commission to the notary public for an additional four (4) year term, using the same commission number as the notary public’s original commission and indicating the new commission expiration date.
    3. Pursuant to the procedures set forth in subsections (4) and (5) of this section, the commission along with the required assurance shall be filed with the county clerk listed in the renewal application, and a new oath of office administered by the county clerk and new fees paid by the notary public to the county clerk, as determined by KRS 64.012 .
    4. A renewed commission shall be valid and effective only upon compliance with this subsection. A notary public shall have no authority to perform notarial acts during any period between the expiration of his or her current commission and the effective date of any renewal commission.
  8. A commission to act as a notary public shall authorize the notary public to perform notarial acts. The commission shall not provide the notary public with any immunity or benefit conferred by the law of this state on public officials or employees.
  9. Before performing an initial notarial act with respect to electronic records, or before performing an initial online notarial act, a notary public shall first register with the Secretary of State. The notary public shall:
    1. At the time of registration, be a commissioned notary public in this Commonwealth who has complied with the requirements set forth in subsections (1) to (8) of this section, and who has complied with all applicable notarial requirements set forth in this chapter;
    2. Register with the Secretary of State by submitting an electronic registration pursuant to this subsection;
    3. Pay to the Secretary of State a registration fee payment, as specified in KRS 423.430 , which is in addition to the commission application fee required to be a notarial officer in this state and any fees required to be paid to the county clerk to file a commission and assurance and to take an oath pursuant to KRS 62.010 ;
    4. Submit to the Secretary of State any registration forms, information, disclosures, and verifications required by administrative regulations promulgated by the Secretary of State; and
    5. Submit to the Secretary of State with the registration proof satisfactory to the Secretary of State that the registrant has satisfied the requirement to post an assurance as a notary public, as set forth in subsections (4) and (5) of this section.
  10. The Secretary of State shall promulgate administrative regulations to establish forms and procedures applicable to the registrations governed by subsection (10) of this section, and shall obtain at least the following information in connection with each registration:
    1. The registrant’s commission number and full legal name as it appears on the registrant’s commission, and the name to be used for registration, if different;
    2. The county in this state in which the registrant resides or has his or her place of employment or practice;
    3. The electronic mail and resident address of the registrant;
    4. Whether the registrant is registering to perform one (1) or both of the following:
      1. Notarial acts with respect to electronic records in which the individual will appear before the notary in the notary’s physical presence; or
      2. As an online notary public to perform electronic notarizations;
    5. A description of the technologies or devices that the registrant intends to use to perform notarial acts with respect to electronic records or electronic notarizations, to maintain the journal required by KRS 423.380 , and to render electronic records tamper-evident after a notarial act is completed, each of which technologies or devices shall comply with any standards established by the Secretary of State;
    6. The digital certification of the registrant; and
    7. Any other information, evidence, disclosures, or declarations required or deemed beneficial by the Secretary of State pursuant to any administrative regulations promulgated by the Secretary of State.
  11. The Secretary of State may reject a registration if the applicant fails to comply with any provision of KRS 423.300 to 423.455 .
  12. Thirty (30) days after compliance with all registration requirements and payment of the required registration fee, a notary public will be registered with the Secretary of State to perform notarial acts in the physical presence of an individual signer with respect to electronic records, or to perform electronic notarizations as an online notary public, or as both.
  13. The Secretary of State may at any time cancel the registration of a notary public to perform notarial acts with respect to electronic records, or as an online notary public to perform electronic notarizations, if the notary public fails to comply with any of the requirements of KRS 423.300 to 423.455 or based upon any of the grounds for revocation or suspension of a notary public’s commission.
  14. Registration of a notary public under this section is suspended by operation of law when the notary public is no longer commissioned as a notary public in this state. If the commission of a notary public has expired or been revoked or suspended, the Secretary of State shall immediately notify the notary public in writing that his or her registration under this section will be suspended by operation of law until he or she is appointed as a notary public in this Commonwealth.

HISTORY: 2019 ch. 86, § 19, effective January 1, 2020.

423.395. Denial, revocation, or limitation of commission — Other remedies.

  1. The Secretary of State may deny, refuse to renew, revoke, suspend, or impose a condition on a commission as notary public for any act or omission that demonstrates the individual lacks the honesty, integrity, competence, or reliability to act as a notary public, including:
    1. Failure to comply with KRS 423.300 to 423.455 ;
    2. A fraudulent, dishonest, or deceitful misstatement or omission in the application for a commission as a notary public submitted to the Secretary of State;
    3. A conviction of the applicant or notary public of any felony or a crime involving fraud, dishonesty, or deceit;
    4. A finding against, or admission of liability by, the applicant or notary public in any legal proceeding or disciplinary action based on the applicant’s or notary public’s fraud, dishonesty, or deceit;
    5. Failure by the notary public to discharge any duty required of a notary public, whether by KRS 423.300 to 423.455 , administrative regulations promulgated by the Secretary of State, or any federal or state law;
    6. Use of false or misleading advertising or representation by the notary public representing that the notary has a duty, right, or privilege that the notary does not have;
    7. Violation by the notary public of an administrative regulation of the Secretary of State regarding a notary public;
    8. Denial, refusal to renew, revocation, or suspension of a notary public commission in another state; or
    9. Failure of the notary public to maintain an assurance.
  2. The authority of the Secretary of State to deny, refuse to renew, suspend, revoke, or impose conditions on a commission as a notary public does not prevent a person from seeking and obtaining other criminal or civil remedies provided by law.

HISTORY: 2019 ch. 86, § 20, effective January 1, 2020.

423.400. Electronic database of notaries public — County clerk to record filing and oath.

  1. The Secretary of State shall maintain an electronic database of notaries public:
    1. Through which a person may verify the authority of a notary public to perform notarial acts; and
    2. Which indicates whether a notary public has registered with the Secretary of State in order to perform notarial acts on electronic records or to act as an online notary public.
  2. Each county clerk who files a notary public’s assurance and administers the oath of office to a notary public shall promptly record the fact and date in the database described in subsection (1) of this section.

HISTORY: 2019 ch. 86, § 21, effective January 1, 2020.

423.405. Unauthorized actions.

  1. A commission as a notary public does not authorize an individual to engage in the practice of law.
  2. A notary public shall not engage in false or deceptive advertising.
  3. A notary public, other than an attorney licensed to practice law in this state, shall not advertise or represent that the notary public may assist persons in drafting legal records, give legal advice, or otherwise engage in the unauthorized practice of law as defined by rule of the Supreme Court.
  4. Except as otherwise allowed by law, a notary public shall not withhold access to or possession of an original record provided by a person that seeks performance of a notarial act by the notary public.

HISTORY: 2019 ch. 86, § 22, effective January 1, 2020.

423.410. Validity of notarial act.

Except as otherwise provided in KRS 423.310(4), the failure of a notarial officer to perform a duty or meet a requirement specified in KRS 423.300 to 423.455 does not invalidate a notarial act performed by the notarial officer. The validity of a notarial act does not prevent an aggrieved person from seeking to invalidate the record or transaction that is the subject of the notarial act or from seeking other remedies based on other laws of this state. This section does not validate a purported notarial act performed by an individual who does not have the authority to perform notarial acts.

HISTORY: 2019 ch. 86, § 23, effective January 1, 2020.

423.415. Administrative regulations.

The Secretary of State may promulgate administrative regulations to implement KRS 423.300 to 423.455 . Promulgated administrative regulations regarding the performance of notarial acts with respect to electronic records or electronic notarizations shall not require, or accord greater legal status or effect to, the implementation or application of a specific technology or technical specification. The administrative regulations may:

  1. Prescribe the manner of performing notarial acts regarding tangible and electronic records;
  2. Establish requirements for notarial training or education as a condition of obtaining or renewing a commission or before registering to perform notarial acts with respect to electronic records or to perform electronic notarizations;
  3. Include provisions to ensure that any change to or tampering with a record bearing a certificate of a notarial act is self-evident;
  4. Include provisions to ensure integrity in the creation, transmittal, storage, or authentication of electronic records or signatures;
  5. Prescribe the process of granting, renewing, conditioning, denying, suspending, or revoking a notary public commission and assuring the trustworthiness of an individual holding a commission as notary public;
  6. Include provisions to prevent fraud or mistake in the performance of notarial acts; and
  7. Establish the process for approving and accepting surety bonds and other forms of assurance under KRS 423.390 .

HISTORY: 2019 ch. 86, § 24, effective January 1, 2020.

423.420. Commission in effect on January 1, 2020 — Renewal — Registration as online notary public.

  1. A commission as a notary public in effect on January 1, 2020, shall continue until its date of expiration. A notary public who applies to renew a commission as a notary public on or after January 1, 2020, shall be subject to and comply with KRS 423.300 to 423.455 . A notary public, in performing notarial acts after January 1, 2020, shall comply with KRS 423.300 to 423.455 .
  2. An existing commission as a notary public does not constitute authority to act as an online notary public. Registration pursuant to KRS 423.390 , and compliance with KRS 423.300 to 423.455 , is required before a notary public with an existing commission may act as an online notary public.

HISTORY: 2019 ch. 86, § 25, effective January 1, 2020.

423.425. Validity of notarial act performed before January 1, 2020.

KRS 423.300 to 423.455 does not affect the validity or effect of a notarial act performed before January 1, 2020.

HISTORY: 2019 ch. 86, § 26, effective January 1, 2020.

423.430. Fees.

  1. For a notarial act relating to a tangible or electronic record, or for an electronic notarization, a notary public may charge a fee:
    1. In compliance with KRS 64.300 ; and
    2. Which has been clearly disclosed to the person requesting the service in advance.
  2. Compensation for services provided by a notary public which do not constitute notarial acts is not governed by this section.
  3. The Secretary of State may charge the following fees in relation to notaries public:
    1. Application for a commission or renewal as a notary public . . . . .  $10
    2. Issuance of a replacement commission upon loss or destruction of the original . . . . .  $10
    3. Update to commission or registration information upon a change of name or address or other specified information . . . . .  $10
    4. Issuance of an electronic certificate of authority or apostille . . . . .  $5 per document
  4. In accordance with KRS 64.012 , county clerks may assess fees for services required to fulfill obligations set forth in KRS 423.300 to 423.455 .

HISTORY: 2019 ch. 86, § 27, effective January 1, 2020.

423.435. Electronic record or paper printout relating to real property deemed to be lawfully recorded or filed.

  1. If an electronic record or paper printout of an electronic record relating to real property located in this state contains an acknowledgment performed by electronic means, notwithstanding any omission or error in the certificate of acknowledgment or failure of the record to show an acknowledgment in compliance with applicable law, upon the record being recorded with the county clerk of the county in which the real property is located or filed with the Secretary of State:
    1. The electronic record or paper printout of an electronic record shall be deemed to be lawfully recorded or filed; and
    2. All persons, including without limitation any creditor, encumbrancer, mortgagee, subsequent purchaser for valuable consideration, or any other subsequent transferee thereof or of any interest therein, are deemed to have notice of its contents.
  2. For the purposes of this section, a record is deemed to comply with all applicable requirements upon the recording by the county clerk of the county in which the real property is located or the filing of the record with the Secretary of State, as required by law.

HISTORY: 2019 ch. 86, § 28, effective January 1, 2020.

423.440. Presumption of proper notarization — Immunity of county clerk.

  1. A writing or record that appears on its face to have been properly notarized in accordance with KRS 423.300 to 423.455 shall be presumed to have been notarized properly and may be recorded by the clerk.
  2. A writing or record notarized outside this state by a notary public or other person referenced in KRS 423.345 or 423.350 that appears on its face to be properly notarized shall be presumed to have been notarized properly in accordance with the laws and regulations of the jurisdiction in which the document was notarized.
  3. The county clerk shall be immune from suit arising from any acts or omissions relating to recording records that have been notarized by electronic means as set forth in KRS 423.300 to 423.455 unless the clerk was grossly negligent or engaged in willful misconduct.

HISTORY: 2019 ch. 86, § 29, effective January 1, 2020.

423.445. Application of Uniform Electronic Transactions Act.

  1. KRS 423.300 to 423.455 are to be construed and applied in a manner consistent with KRS 369.101 to 369.120. In accordance with KRS 369.105, nothing in KRS 423.300 to 423.455 shall affirmatively require any person to create, generate, send, communicate, receive, store, or otherwise process or use electronic records or complete a transaction using electronic means, and in accordance with KRS 369.118, nothing shall require any governmental agency to send and accept electronic records and electronic signatures to and from other persons, or to otherwise create, generate, communicate, store, process, use, and rely upon electronic records and electronic signatures, except as may be otherwise required by law.
  2. A requirement that a record or a signature associated with a record be notarized, acknowledged, verified, witnessed, or made under oath is satisfied by a paper printout of an electronic record bearing an electronic signature of the person authorized to perform that act and all other information required to be included pursuant to KRS 369.111.
  3. In accordance with KRS 369.118, a governmental agency that accepts paper printouts of electronic records may establish rules, procedures, or requirements governing this acceptance.

HISTORY: 2019 ch. 86, § 30, effective January 1, 2020.

423.450. Certificate verifying notary public’s signature — Electronic certificate of authority.

  1. With respect only to notarial acts performed in relation to tangible records, the county clerk of a county in whose office any notary public has so filed his or her signature and surety bond shall when requested subjoin to any certificate of proof or acknowledgment signed by the notary a certificate under his or her hand and seal stating that such notary public’s written signature is on file in the clerk’s office, and was at the time of taking such proof or acknowledgment duly authorized to take the same, that the clerk is well acquainted with the handwriting of the notary public, and believes that the signature to the proof or acknowledgment is genuine.
  2. For all notarial acts performed in relation to electronic records that are transmitted to another state or nation, electronic evidence of the authenticity of the official signature and seal of a notary public of this state, if required, shall be attached to, or logically associated with, the record and shall be in the form of an electronic certificate of authority signed by the Office of the Secretary of State in conformance with any current and pertinent international treaties, agreements, and conventions subscribed to by the United States.
  3. An electronic certificate of authority evidences the authenticity of the official signature and seal of an online notary public of this state and shall contain substantially the following:

“Certificate of Authority for a Notarial Act I, (name), Secretary of State of the Commonwealth of Kentucky, certify that (name of electronic notary), the person named as a Notary Public in the attached or associated electronic document, was indeed commissioned as a Notary Public for the Commonwealth of Kentucky and authorized to act as such at the time of the document’s electronic notarization. To verify this Certificate of Authority for a Notarial Act, I have included herewith my electronic signature this day of , (year).

Click to view(Electronic signature and seal of the Kentucky Secretary of State)”

HISTORY: 2019 ch. 86, § 31, effective January 1, 2020.

423.455. Notarial act for remotely located individual facilitated by communication technology — Certificate — Retention of audio-visual recording — Notification of Secretary of State — Administrative regulations — Service of process.

  1. A remotely located individual may comply with KRS 423.320 by appearing before a notary public by means of communication technology.
  2. A notary public located in this state may perform a notarial act facilitated by communication technology for a remotely located individual if:
    1. The notary public:
      1. Has personal knowledge pursuant to KRS 423.325(1) of the identity of the individual;
      2. Has satisfactory evidence of the identity of the remotely located individual by oath or affirmation from a credible witness appearing before the notary public under KRS 423.325(2); or
      3. Reasonably can identify the individual by at least two (2) different types of identity-proofing processes or services;
    2. The notary public is able reasonably to identify a record before the notary public as the same record in which the remotely located individual made a statement or on which the remotely located individual executed a signature;
    3. The notary public, or a person acting on behalf of the notary public, creates an audio-visual recording of the performance of the notarial act; and
    4. For a remotely located individual who is located outside the United States:
      1. The record:
        1. Is to be filed with or relates to a matter before a court, governmental entity, public official, or other entity subject to the jurisdiction of the United States; or
        2. Involves property located in the territorial jurisdiction of the United States or a transaction substantially connected with the United States; and
      2. The act of making the statement or signing the record is not prohibited by the foreign state in which the remotely located individual is located.
  3. If a notarial act is performed pursuant to this section, the certificate of notarial act required by KRS 423.360 and the short-form certificate provided in KRS 423.365 shall indicate that the notarial act was performed by means of communication technology.
  4. A short-form certificate provided in KRS 423.365 for a notarial act subject to this section is sufficient if it:
    1. Complies with administrative regulations promulgated pursuant to subsection (7)(a) of this section; or
    2. Is in the form provided by KRS 423.365 and contains a statement substantially as follows: “This notarial act involved the use of communication technology.”
  5. A notary public, a guardian, a conservator, or agent of a notary public, or a personal representative of a deceased notary public shall retain the audio-visual recording created under subsection (2)(c) of this section or cause the recording to be retained by a repository designated by or on behalf of the person required to retain the recording. Unless a different period is required by administrative regulations promulgated under subsection (7)(d) of this section, the recording shall be retained for no less than ten (10) years after the recording is made.
  6. Before a notary public performs the notary public’s initial notarial act under this section, the notary public shall notify the Secretary of State that the notary public will be performing notarial acts facilitated by communication technology and identify the technology. If the Secretary of State has established standards for approval of communication technology or identity proofing under subsection (7) of this section, the communication technology and identity proofing shall conform to those standards.
  7. In addition to promulgating administrative regulations under KRS 423.415 , the Secretary of State may promulgate administrative regulations regarding performance of a notarial act. The administrative regulations may:
    1. Prescribe the means of performing a notarial act involving a remotely located individual using communication technology;
    2. Establish standards for communication technology and identity proofing;
    3. Establish requirements or procedures to approve providers of communication technology and the process of identity proofing; and
    4. Establish standards and a period of the retention of an audio-visual recording created under subsection (2)(c) of this section.
  8. Before promulgating administrative regulations governing performance of a notarial act with respect to a remotely located individual, the Secretary of State shall consider:
    1. The most recent standards regarding the performance of a notarial act with respect to a remotely located individual promulgated by national standard-setting organizations and the National Association of Secretaries of State;
    2. Standards, practices, and customs of other jurisdictions that have laws substantially similar to this section; and
    3. The views of governmental officials and entities and other interested persons.
  9. By allowing its communication technology or identity proofing technology to facilitate a notarial act for a remotely located individual or by providing storage of the audio-visual recording created under subsection (2)(c) of this section, the provider of the technology appoints the Secretary of State as the provider’s agent for service of process in any civil action in this state related to the notarial act.

HISTORY: 2019 ch. 86, § 32, effective January 1, 2020.

Legislative Research Commission Notes.

(1/1/2020). Although 2019 Ky. Acts ch. 86, sec. 32, contained a citation to “Section 27 of this Act” (codified as KRS 423.430 ) in subsection (6) of this statute, it is clear from the context that a reference to subsection (7) of this statute was intended. Similarly, a citation to “Section 27 of this Act” in subsection (7) of this statute was clearly intended to refer to Section 24 (codified as KRS 423.415 ). These manifest clerical or typographical errors were corrected in codification under the authority of KRS 7.136 .

423.460. Relation of KRS 382.075, 382.076, and 423.300 to 423.455 to Electronic Signatures in Global and National Commerce Act.

KRS 382.075 , 382.076 , and 423.300 to 423.455 modify, limit, and supersede the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. secs. 7001 et seq., but do not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. sec. 7001(c) , or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. sec. 7003(b) .

HISTORY: 2019 ch. 86, § 35, effective January 1, 2020.

423.465. Conflict between laws.

In the event of a conflict between the provisions of this chapter and any other law in this state, the provisions of this chapter shall control.

HISTORY: 2019 ch. 86, § 36, effective January 1, 2020.

423.990. Penalties. [Repealed]

History. 3727: amend. Acts 1976 (Ex. Sess.), ch. 14, § 427, effective January 2, 1978; repealed by 2019 ch. 86, § 50, effective January 1, 2020.

CHAPTER 424 Legal Notices

424.010. Bona fide circulation; definition of. [Repealed.]

Compiler’s Notes.

This section (14a-1a, 374a-1a) was repealed by Acts 1958, ch. 42, § 29.

424.020. Authority to publish; how acquired. [Repealed.]

Compiler’s Notes.

This section (13) was repealed by Acts 1958, ch. 42, § 29.

424.030. Rates allowed publishers. [Repealed.]

Compiler’s Notes.

This section (14a-3) was repealed by Acts 1958, ch. 42, § 29.

424.040. Evidence of publication. [Repealed.]

Compiler’s Notes.

This section (14) was repealed by Acts 1958, ch. 42, § 29.

General Provisions

424.110. Definitions.

As used in KRS 424.110 to 424.370 :

  1. “Publication area” means the city, county, district, or other local area for which an advertisement is required by law to be made. An advertisement shall be deemed to be for a particular city, county, district, or other local area if it concerns an official activity of the city, county, district, or other area or of any governing body, board, commission, officer, agency, or court thereof, or if the subject of the advertisement concerns particularly the people of the city, county, district, or other area;
  2. “Advertisement” means any matter required by law to be published; and
  3. “Zoned edition” means a newspaper edition published at least once a week, distributed in a specific geographic region of the newspaper’s circulation area, and containing reporting and advertising of interest to subscribers in that geographic region.

History. Enact. Acts 1958, ch. 42, § 1; 1960, ch. 168, § 1; 1992, ch. 9, § 1, effective July 14, 1992.

NOTES TO DECISIONS

1.Commencement of Incorporation Action.

Although there must be a public notice, KRS 81.050(2) does not require that it be filed concurrently with the petition, but only demands that the notice be published as required by this chapter; thus, there need be only a petition for incorporation filed with the circuit clerk which commences the action, thereby constituting the first step. Jeffersontown v. Hurstbourne, 684 S.W.2d 23, 1984 Ky. App. LEXIS 584 (Ky. Ct. App. 1984).

Cited in:

Board of Education v. Hall, 353 S.W.2d 194, 1962 Ky. LEXIS 8 ( Ky. 1962 ).

Opinions of Attorney General.

Under this section and KRS 424.120 , where no newspaper was published in a city and a newspaper in an adjoining city claiming to have the largest circulation in the city concerned but not in the county claimed to be qualified to accept legal advertising under KRS 424.120 , such newspaper could not qualify and the qualified newspaper was that newspaper published in the entire county which had the largest bona fide circulation in that county. OAG 73-419 .

In view of this section and KRS 424.120 , a city could not legally place its required advertisement in a weekly newspaper that did not maintain its office within the corporate limits of the city even though it had the largest circulation therein. OAG 73-663 .

For extensive zoning changes and map amendments, only the publication requirements of KRS Chapter 424 must be followed; individual notices need not be given all property owners. OAG 78-74 .

For the purpose of legal advertisements, the “publication area” for the Kenton County airport board is Kenton County, inasmuch as the operation of the Kenton County airport, though conducted in the main in Boone County, is an official activity of the airport board, which was created by Kenton County and which is derivatively a board of Kenton County. OAG 80-584 .

This chapter applies only to those publications required by law to be published. However, an exception under this act is the list of uncollectible delinquent taxes, which must be published pursuant to KRS 424.330 . OAG 82-128 .

Under the home rule authority it is possible that a city could, pursuant to appropriate ordinance, require the publication of the names of those persons who are delinquent in paying their sewer and water bills. However, the power to do so would remain questionable pending litigation. OAG 82-128 .

“Publication pursuant to KRS Chapter 424,” as provided by KRS 426.560 means (1) publication in a particular “publication area” and (2) publication in a qualified newspaper. OAG 94-9 .

Under the language of subsection (1) of this section, the “publication area” within which an advertisement is required by law to be made by a master commissioner, is the particular county in which circuit court a master commissioner serves, is located. OAG 94-9 .

The circulation of a newspaper, as reflected in the “statement of ownership,” is not controlling in determining the “bona fide paid circulation” in the publication area; therefore, a fiscal court, in a county with two (2) or more newspapers that meet the requirements of KRS 424.120 , must solicit affidavits from otherwise qualified newspapers as to their “bona fide paid circulation” within the publication area, in order to determine which newspaper is entitled to receive statutorily required advertising of governmental notices. OAG 95-28 .

Research References and Practice Aids

Cross-References.

Fish and wildlife resources, department of, rules and regulations as to game and fish, nonapplication of chapter to, KRS 150.025 .

Kentucky Law Journal.

Tarlock, Kentucky Planning and Land Use Controls Enabling Legislation: An Analysis of the 1966 Revision of KRS Chapter 100, 56 Ky. L.J. 556 (1968).

424.120. Qualifications of newspapers.

  1. Except as provided in subsection (2) of this section, if an advertisement for a publication area is required by law to be published in a newspaper, the publication shall be made in a newspaper that meets the following requirements:
    1. It shall be published in the publication area. A newspaper shall be deemed to be published in the area if it maintains its principal office in the area for the purpose of gathering news and soliciting advertisements and other general business of newspaper publications, and has a periodicals class mailing permit issued for that office. A newspaper published outside of Kentucky shall not be eligible to carry advertisements for any county or publication area within the county, other than for the city in which its main office is located, if there is a newspaper published in the county that has a substantial general circulation throughout the county and that otherwise meets the requirements of this section; and
    2. It shall be of regular issue and have a bona fide circulation in the publication area. A newspaper shall be deemed to be of regular issue if it is published at least once a week, for at least fifty (50) weeks during the calendar year as prescribed by its mailing permit, and has been so published in the area for the immediately preceding two (2) year period. A newspaper meeting all the criteria to be of regular issue, except publication in the area for the immediately preceding two (2) year period, shall be deemed to be of regular issue if it is the only paper in the publication area and has a paid circulation equal to at least ten percent (10%) of the population of the publication area. A newspaper shall be deemed to be of bona fide circulation in the publication area if it is circulated generally in the area, and maintains a definite price or consideration not less than fifty percent (50%) of its published price, and is paid for by not less than fifty percent (50%) of those to whom distribution is made; and
    3. It shall bear a title or name, consist of not less than four (4) pages without a cover, and be of a type to which the general public resorts for passing events of a political, religious, commercial, and social nature, and for current happenings, announcements, miscellaneous reading matter, advertisements, and other notices. The news content shall be at least twenty-five percent (25%) of the total column space in more than one-half (1/2) of its issues during any twelve (12) month period.
    4. If, in a publication area there is more than one (1) newspaper which meets the above requirements, the newspaper having the largest bona fide paid circulation as shown by the average number of paid copies of each issue as shown in its published statement of ownership as filed on October 1 for the publication area shall be the newspaper where advertisements required by law to be published shall be carried.
    5. For the purposes of KRS Chapter 424, publishing shall be considered as the total recurring processes of producing the newspaper, embracing all of the included contents of reading matter, illustrations, and advertising enumerated in paragraphs (a) through (d) of this subsection. A newspaper shall not be excluded from qualifying for the purposes of legal publications as provided in this chapter if its printing or reproduction processes take place outside the publication area.
    1. If, in the case of a publication area smaller than the county in which it is located, there is no newspaper published in the area, the publication shall be made in a newspaper published in the county that is qualified under this section to publish advertisements for the county. If the qualified newspaper publishes a zoned edition which is distributed to regular subscribers within the publication area, any advertisement required by law to be published in the publication area may be published in the zoned edition distributed in that area. (2) (a) If, in the case of a publication area smaller than the county in which it is located, there is no newspaper published in the area, the publication shall be made in a newspaper published in the county that is qualified under this section to publish advertisements for the county. If the qualified newspaper publishes a zoned edition which is distributed to regular subscribers within the publication area, any advertisement required by law to be published in the publication area may be published in the zoned edition distributed in that area.
    2. If, in any county there is no newspaper meeting the requirements of this section for publishing advertisements for that county, any advertisements required to be published for the county or for any publication area within the county shall be published in a newspaper of the largest bona fide circulation in that county published in and qualified to publish advertisements for an adjoining county in Kentucky. This subsection is intended to supersede any statute that provides or contemplates that newspaper publication may be dispensed with if there is no newspaper printed or published or of general circulation in the particular publication area.
  2. If a publication area consists of a district, other than a city, which extends into more than one (1) county, the part of the district in each county shall be considered to be a separate publication area for the purposes of this section, and an advertisement for each separate publication area shall be published in a newspaper qualified under this section to publish advertisements for the area.

History. Enact. Acts 1958, ch. 42, § 2; 1960, ch. 168, § 1; 1982, ch. 180, § 1, effective July 15, 1982; 1982, ch. 430, § 3, effective July 15, 1982; 1984, ch. 201, § 1, effective July 13, 1984; 1992, ch. 9, § 2, effective July 14, 1992; 2006, ch. 8, § 3, effective July 12, 2006.

NOTES TO DECISIONS

1.Circulation.

Statement that newspaper had largest circulation was, standing alone, insufficient to prove such newspaper’s qualifications. Williams v. Commonwealth, 392 S.W.2d 454, 1965 Ky. LEXIS 286 ( Ky. 1965 ).

The newspaper with the greatest bona fide paid circulation in the county is entitled to publish the county treasurer’s report and not the paper which has the largest overall circulation which includes a number of counties. Whitley Whiz, Inc. v. Whitley County, 812 S.W.2d 149, 1991 Ky. LEXIS 46 ( Ky. 1991 ).

2.Substantial Compliance.

An urban county government’s failure to strictly comply with the legal publication requirements of subdivision (1)(b) of this section, by publishing their ordinance concerning a sewer project in a newspaper that did not have the largest bona fide circulation in the area, was not reversible error where substantial compliance with the notification requirements had been achieved, in that the notice was published in the newspaper with the second largest circulation, individual notices were mailed to the affected property owners, and there was considerable publicity about the initiation of the sewer project by means of radio, television and newspaper coverage. Conrad v. Lexington-Fayette Urban County Government, 659 S.W.2d 190, 1983 Ky. LEXIS 274 ( Ky. 1983 ).

Opinions of Attorney General.

Where two newspapers satisfy all of the other requirements of paragraphs (b) and (c) of subsection (1) of this section but neither will admit the greater circulation of the other in the independent school district, the board should secure affidavits from both newspapers as to the number of paid subscribers each has within the independent school district. OAG 61-1055 .

Where a newspaper company owned more than one newspaper within a publication area, it could not combine the circulation of two or more papers to qualify as having the largest bona fide circulation. OAG 62-231 .

Subsection (2) of this section supersedes KRS 87.050 (repealed) and would require ordinances to be published in a qualified newspaper even though there was no newspaper published in the city. OAG 62-546 .

The sale of real property for delinquent taxes must be at a public sale, advertised in a newspaper of local publication, with anyone having the right to bid on such property before a purchase of any of the property is valid. OAG 63-56 .

Newspapers claiming to have the largest circulation should be required to file with the fiscal court certified statements as to their circulation after which the court can make its selection from the best information available. OAG 64-399 .

The phrase “bona fide circulation” includes copies of newspapers sold on newsstands as well as those delivered by newsboys and free copies sent to correspondents, advertisers or advertising agencies within the publication area as defined in this section. OAG 64-399 .

A judgment in a court of law finding one newspaper to the largest bona fide circulation in the publication area as against a rival newspaper is good only so long as the statutory qualification is met. OAG 65-859 .

Free newspapers distributed can be counted in the circulation number so long as the circulation price is paid by not less than 50 percent of those to whom distribution is made. OAG 65-859 .

Where the mayor owned and operated the newspaper having the largest bona fide circulation, legal notices would be required to be published in that paper regardless of the other disqualifying factors. OAG 66-18 .

The fiscal court must strictly follow the provisions of this section in making a determination of which newspaper has the largest bona fide circulation from time to time during the year. OAG 69-173 .

If a newspaper meets the qualifications set forth in this section and KRS 424.110 , it should be utilized to publish all city ordinances. OAG 69-688 .

KRS 424.340 does not refer to KRS 424.130 , but does refer to this section. OAG 70-523 .

Under this section a newspaper is not necessarily required to be printed in the county or state if the company publishing the newspaper maintains an office in the publication area for the purpose of gathering news and soliciting advertisements and other general business of newspaper publication and has a second-class mailing permit issued for that office. OAG 72-312 .

Where a member of the city council is the owner and publisher of the only county newspaper or printing concern, he would be prohibited from signing a contract with the city for commercial printing by KRS 61.270 and 86.050 (repealed), but if the newspaper is the only one published in the city that qualifies pursuant to this section for publishing notices, financial statements and other material required by law to be published within the city, there would be no conflict of interest with respect to such publication. OAG 73-88 .

Under this section and KRS 424.110 , where no newspaper was published in a city and a newspaper in an adjoining city claiming to have the largest circulation in the city concerned but not in the county claimed to be qualified to accept legal advertising from that city, such newspaper could not qualify and the qualified newspaper was that newspaper published in the entire county which had the largest bona fide circulation in that county. OAG 73-419 .

Where a member of a county board of education and her husband owned a weekly newspaper, the only newspaper in that county, school financial statements and legal notices could pursuant to this section and KRS 424.220 be published in such newspaper without violating KRS 160.180 . OAG 73-438 .

In view of this section and KRS 424.110 , a city could not legally place its required advertisement in a weekly newspaper that did not maintain its office within the corporate limits of the city, even though it had the largest circulation therein. OAG 73-663 .

No conflict of interests would exist if the wife of a publisher of a paper qualified pursuant to this section to publish legal advertisements for the county board of education is elected to the board of education. OAG 74-516 .

A legal notice of a city ordinance published in a newspaper that has not been published for one year as required by this section is considered published and would be enforceable under KRS 87.050 (repealed) since it is presumed that it was legally published until the courts say otherwise. OAG 75-428 .

Although all county election publications must be published in the newspaper qualifying as the one having the largest circulation within the county as prescribed in this section, the contract for the printing of election supplies is not required to be given to the newspaper having the largest circulation and may be given to any other newspaper as long as it is located in the county in conformance with KRS 57.285 . OAG 75-711 .

If both of the papers in a county are qualified in every other respect, the county should make its legal advertising in the newspaper with the largest circulation in the publication area and the proper way to make the determination is by evidence submitted in affidavit form from the publishers. OAG 78-202 .

For the purpose of legal advertisements, the “publication area” for the Kenton County airport board is Kenton County, inasmuch as the operation of the Kenton County airport, though conducted in the main in Boone County, is an official activity of the airport board, which was created by Kenton County and which is derivatively a board of Kenton County. OAG 80-584 .

Where a county contains several cities which require publication of legal notices, but only one newspaper serves the entire county, those cities cannot satisfy the publication requirements of subsection (2) of this section by publishing the legal notices in special zoned editions of the single newspapers, which are separate newspapers distributed weekly within a specific geographic area of the county and contain local reporting and advertising, since they would not qualify on their own under subsection (2) of this section; however, the single parent newspaper would qualify because it is published in the county and has the largest bona fide circulation throughout the county. OAG 81-321 .

A fiscal court, in determining administratively which newspaper in the county has the greatest bona fide circulation in order to effect county legal advertising, may use any reasonable means to elicit evidence necessary to make such administrative determination; this may include a hearing, upon proper notice, and the taking of sworn testimony of witnesses and the filing of affidavits and, thus, sworn testimony may be introduced which may have the effect of challenging so-called factual data contained in affidavits of publishers previously filed. OAG 82-90 .

The annual financial statement of a county cannot be carried by a newspaper other than the one having the greatest bona fide circulation since this section explicitly requires the ad to be carried by the newspaper having the greatest bona fide circulation. OAG 82-117 .

Under the express terms of KRS 424.220 , the officer responsible for the county financial statement must, within 60 days after the close of the fiscal year, cause the statement to be published in full in a newspaper qualified under this section to publish ads for the county (largest bona fide circulation, etc.), regardless of the financial burden imposed on the county by the cost of placing the full statement in the newspaper. OAG 82-117 .

Acts 1982, ch. 430, which amends this section and several other statutes relating to publication requirements of cities, is basically an amendment of the municipal publication requirements and does not affect the city budget process, financial matters in cities or matters relating to the administration of city finances. It gives a city a choice as to which of two devices relating to finances and expenditures must be published annually rather than requiring that they both be published and affects what a city publishes after the completion of the fiscal year, but does not affect the activities of a city during the fiscal year; it does not impair any vested rights. OAG 82-353 .

As to its publication provisions for municipal governments, Acts 1982, ch. 430, effective July 15, 1982, is applicable to those municipal governments for the fiscal year July 1, 1981 to June 30, 1982. OAG 82-353 .

Under subdivision (1)(d) of this section, if there is, in the publication area, more than one newspaper which meets the requirements of subdivisions (1)(a), (b), and (c) of this section, the greater bona fide circulation controls; in the event the two newspapers should, in their published statement of ownership, show an identical number relating to bona fide circulation, the fiscal court could request the two newspapers to submit affidavits relating to the precise bona fide circulation in the county, but should the affidavits contain identical figures as to the bona fide circulation, only the courts could resolve the question of which paper has the right to print county advertisements. OAG 83-247 .

Where KRS 88.060 (repealed) which required newspaper publication of city ordinances was in effect both when a city enacted an ordinance and when it subsequently amended that ordinance, and the city failed to publish both the original ordinance and the amendment, neither ordinance was legally enacted and both ordinances were therefore unenforceable. OAG 83-372 .

Where there is more than one newspaper qualifying under this section to run mandated county advertising, then the newspaper with the largest bona fide circulation should get the county’s advertising; in speaking of the largest bona fide circulation, it is the circulation shown by the published statement of ownership for the publication area. However, where two county newspapers each claim that it has the largest circulation, the fiscal court in making the determination of which newspaper actually does have the highest bona fide circulation in the county may use any reasonable means to elicit evidence necessary to make such determination. OAG 84-30 .

KRS 158.690 (repealed) requires the school district’s annual performance report to be published annually in the newspaper with the largest circulation in the county; a district is to determine which paper is the largest circulation by applying the criteria of subdivision (1)(d) of this section. OAG 86-72 .

Since the annual performance report required by KRS 158.690 (repealed) to be published is a matter required by law to be published, it is an “advertisement” within the meaning of KRS Chapter 424, and this section is applicable to the school district’s duty to publish the annual performance report pursuant to KRS 158.690 (repealed). OAG 86-72 .

A newspaper distributed for free may not be considered for publication of the school district’s annual performance report required by KRS 158.690 (repealed). OAG 86-72 .

The master commissioner of the Campbell Circuit Court is required to advertise master commissioner sales in the Campbell County Recorder newspaper unless otherwise agreed upon by the parties, or unless the appraised value of the property to be sold is less than $100. OAG 94-9 .

“Publication pursuant to KRS Chapter 424,” as provided by KRS 426.560 means (1) publication in a particular “publication area” and (2) publication in a qualified newspaper. OAG 94-9 .

The circulation of a newspaper, as reflected in the “statement of ownership,” is not controlling in determining the “bona fide paid circulation” in the publication area; therefore, a fiscal court, in a county with two (2) or more newspapers that meet the requirements of this section, must solicit affidavits from otherwise qualified newspapers as to their “bona fide paid circulation” within the publication area, in order to determine which newspaper is entitled to receive statutorily required advertising of governmental notices. OAG 95-28 .

Research References and Practice Aids

Kentucky Bench & Bar.

Schneiter, Equine Statutory Liens, Vol. 67, No. 4, July 2003, Ky. Bench & Bar 23.

Kentucky Law Journal.

Kentucky Law Survey, Morris, Municipal Law, 70 Ky. L.J. 287 (1981-82).

424.130. Times and periods of publication — Posting of delinquent tax lists.

  1. Except as otherwise provided in KRS 424.110 to 424.370 and notwithstanding any provision of existing law providing for different times or periods of publication, the times and periods of publications of advertisements required by law to be made in a newspaper shall be as follows:
    1. When an advertisement is of a completed act, such as an ordinance, resolution, regulation, order, rule, report, statement, or certificate and the purpose of the publication is not to inform the public or the members of any class of persons that they may or shall do an act or exercise a right within a designated period or upon or by a designated date, the advertisement shall be published one (1) time only and within thirty (30) days after completion of the act. However, a failure to comply with this paragraph shall not invalidate any ordinance or resolution or subject a person to any of the penalties provided by KRS 424.990 unless such failure continues for a period of fifteen (15) days after notice to comply has been given him by registered letter.
    2. When an advertisement is for the purpose of informing the public or the members of any class of persons that on or before a certain day they may or shall file a petition or exceptions or a remonstrance or protest or objection, or resist the granting of an application or petition, or present or file a claim, or submit a bid, the advertisement shall be published at least once, but may be published two (2) or more times, provided that one (1) publication occurs not less than seven (7) days nor more than twenty-one (21) days before the occurrence of the act or event.
    3. When an advertisement is for the purpose of informing the public and the advertisement is a notice of delinquent taxes, or notice of the sale of tax claims, the advertisement shall be published either:
      1. Once a week for three (3) consecutive weeks; or
      2. One (1) time, preceded by a one-half (1/2) page notice of advertisement the preceding week. The one-half (1/2) page advertisement shall include notice that a list of uncollectible delinquent taxes is also available for public inspection in accordance with KRS 424.330 during normal business hours at the business address of the city or county and on an identified Internet Web site. The advertisement shall include the business address of the city or county and the Uniform Resource Locator (URL) for the Internet Web site where the document can be viewed. The Internet Web site shall be affiliated with the city or county and contain other information about the city or county government. The delinquent tax list shall be posted on the Internet Web site for a minimum of thirty (30) days and shall be updated weekly. The provisions of this paragraph shall not be construed to require the advertisement of notice of delinquent state taxes which are collected by the state.
    4. Any advertisement not coming within the scope of paragraph (a), (b), or (c) of this subsection, such as one for the purpose of informing the public or the members of any class of persons of the holding of an election, or of a public hearing, or of an examination, or of an opportunity for inspection, or of the due date of a tax or special assessment, shall be published at least once but may be published two (2) or more times, provided that one (1) publication occurs not less than seven (7) days nor more than twenty-one (21) days before the occurrence of the act or event, or in the case of an inspection period, the inspection period commences.
    5. If the particular statute requiring that an advertisement be published provides that the day upon or by which, or the period within which, an act may or shall be done or a right exercised, or an event may or shall take place, is to be determined by computing time for the day of publication of an advertisement, the advertisement shall be published at least once, promptly, in accordance with the statute, and the computation of time shall be from the day of initial publication.
  2. This section is not intended to supersede or affect any statute providing for notice of the fact that an adversary action in court has been commenced.

History. Enact. Acts 1958, ch. 42, § 3; 1960, ch. 168, § 1; 1988, ch. 32, § 1, effective July 15, 1988; 2002, ch. 346, § 231, effective July 15, 2002; 2006, ch. 8, § 4, effective July 12, 2006; 2011, ch. 46, § 1, effective June 8, 2011; 2019 ch. 35, § 7, effective June 27, 2019.

NOTES TO DECISIONS

1.Applicability.

Combined effect of KRS 424.130(1)(d) and KRS 103.2101 was a requirement of at least two notices of the Kentucky Private Action Bond Allocation Committee’s public hearings, one not less than 30 days and another between seven (7) and 21 days prior to the hearing. 2007 Ky. App. Unpub. LEXIS 309 (Ky. Ct. App. May 4, 2007).

2.Publication.
3.—Sufficiency.

Facts that notice was published three (3) times in only 11 days and that last publication was only two days before advertised event did not constitute insufficient notice. Pierson Trapp Co. v. Peak, 340 S.W.2d 456, 1960 Ky. LEXIS 42 ( Ky. 1960 ).

Since KRS 243.360 does not require that the date of the filing of the application be made a part of the advertisement, and such date was not included, the provision of this section fixing the time within which publication is required did not apply to the publication of a notice of intention to apply for a license but the notice had to afford interested parties an opportunity to protest. S. W. Palmer--Ball v. Esquire Liquors, Inc., 490 S.W.2d 472, 1973 Ky. LEXIS 626 ( Ky. 1973 ).

Since the purpose of the notice of filing petition for annexation requirement is to inform citizens that within a certain time they have a right to respond to the petition, the notice of filing is a form of constructive service of process and unless statutory form is strictly complied with, service is bad. St. Matthews v. Beha, 549 S.W.2d 842, 1977 Ky. App. LEXIS 677 (Ky. Ct. App. 1977).

Where notice of filing petition for annexation was published more than 21 days before the date fixed in the advertisement as the last day to remonstrate, the annexation was invalid. St. Matthews v. Beha, 549 S.W.2d 842, 1977 Ky. App. LEXIS 677 (Ky. Ct. App. 1977).

The publication of the entire notice of annexation statute (KRS 81A.420 ) does not reasonably inform the general public of the time frame for protesting an annexation proposal; in preference to giving the public notice by publishing KRS 81A.420 in its entirety, a simple “notice” publication conforming to subdivision (1)(b) of this section and KRS 424.140 , informing the interested public of their right to protest would have been sufficient and not reasonably susceptible to misinterpretation. Merritt v. Campbellsville, 678 S.W.2d 788, 1984 Ky. App. LEXIS 625 (Ky. Ct. App. 1984).

The verbatim publication of the entire notice of annexation statute (KRS 81A.420 ) did not constitute sufficient notice of a city’s proposed annexation in light of KRS 424.140(4) and this section, so as to give interested parties a fair opportunity to oppose the annexation, and for that reason the annexation was invalid. Merritt v. Campbellsville, 678 S.W.2d 788, 1984 Ky. App. LEXIS 625 (Ky. Ct. App. 1984).

4.—Insufficiency.

Where the publication failed to give proper notice as to the time for filing objection to the proposed incorporation and failed to give proper notice of the incorporation hearing, the deficient publication divested the trial court of jurisdiction and dismissal of the case was proper. Okolona v. Lindsey, 706 S.W.2d 835, 1986 Ky. LEXIS 251 ( Ky. 1986 ).

When the Kentucky Private Activity Bond Allocation Committee considered a city’s application for approval of industrial revenue bonds to develop certain property, notice of the hearing before the Committee, pursuant to KRS 424.130 (d), was insufficient because its description of the hearing’s purpose was inadequate when it merely referred to “50 acres of variable use land,” thus failing to identify specifically the proposed development property. 2007 Ky. App. Unpub. LEXIS 309 (Ky. Ct. App. May 4, 2007).

When the Kentucky Private Activity Bond Allocation Committee considered a city’s application to approve the city’s issuance of industrial revenue bonds, the notice of that hearing did not comply with the combined effect of KRS 424.130(1)(d) and KRS 103.2101 , because those statutes required at least two (2) notices of such hearings, and only one notice was given. 2007 Ky. App. Unpub. LEXIS 309 (Ky. Ct. App. May 4, 2007).

5.Ordinances.

Ordinance of a second-class city proposing annexation of certain territory was invalid as it was not published three times as required by paragraph (b) of subsection (1) of this section prior to its amendment in 1960. Vincent v. Bowling Green, 349 S.W.2d 694, 1961 Ky. LEXIS 60 ( Ky. 1961 ).

6.Protest or Objection.

Where zoning board granted permission to erect television tower after notice was published in newspaper on Sunday, a property owner whose residence was near to tower four months later was estopped, after tower was partially erected, to complain. Oeth v. Felty, 421 S.W.2d 860, 1967 Ky. LEXIS 90 ( Ky. 1967 ).

7.Elections.

In regard to whether or not this section regarding time and period of publication has been complied with in determining whether what was done was sufficient compliance, more liberal regard for the term substantial compliance should be had where there is a particular matter to be voted upon at regular or general election fixed by law for choosing public officers than where there will be special or called election at time not fixed by law to vote upon particular proposal, for voters are likely to attend a general election but not a special election. Lyon v. County of Warren, 325 S.W.2d 302, 1959 Ky. LEXIS 41 ( Ky. 1959 ).

Where notice of election on proposal to issue bonds for purpose of remodeling, enlarging and equipping county hospital was not published once a week for two consecutive weeks as required by this section but there was evidence that there had been a vigorous campaign waged for and against the proposal, that there were many feature articles and publicly sponsored advertisements published in local newspapers and several editorials were written concerning the bond issue, that there were numerous radio broadcasts during the period and 20,000 cards and explanatory folders were distributed and 150 signs were posted and that numerous speaking rallies were held boosting the project, in such circumstances notice of advertisement of election was deemed a substantial compliance with the requirement of this section as the object thereof was fully accomplished. Lyon v. County of Warren, 325 S.W.2d 302, 1959 Ky. LEXIS 41 ( Ky. 1959 ) (decision prior to 1960 amendment).

Where this section regarding time and periods of publication of notice of vote on particular proposal has not been complied with in determining whether or not there has been substantial compliance, court often has considered whether voters otherwise had full and actual notice of election and of question submitted and, while official notice is mandatory and cannot be omitted, courts may consider extrinsic material or unofficial notices as supplemental to official notice. Lyon v. County of Warren, 325 S.W.2d 302, 1959 Ky. LEXIS 41 ( Ky. 1959 ).

8.—Special.

Statutory provisions with reference to publicizing a special election or a special proposition to be voted on at a regular election are for the purpose of informing the electorate a sufficient length of time to enable them to arrange to attend the election and make up their minds on how to vote upon the proposition; where that purpose appears to have been accomplished by a substantial compliance with statutory provisions as to times and period of publication, the election ought not and will not be voided. Lyon v. County of Warren, 325 S.W.2d 302, 1959 Ky. LEXIS 41 ( Ky. 1959 ).

Cited in:

Robinson v. Ehrler, 691 S.W.2d 200, 1985 Ky. LEXIS 249 ( Ky. 1985 ).

Opinions of Attorney General.

The provisions of this section supersede the publication provisions of KRS 66.070 (repealed) and the publication of a special election held pursuant to that section should be made in the manner provided in this section. OAG 60-563 .

For a sixth-class city, KRS 81.240 (repealed) controls the publication of an annexation ordinance and where there was no daily or weekly newspaper in the city, the annexation ordinance would have to be published by posting. OAG 63-983 .

The county budget must be published in full and synopsis would not be sufficient. OAG 65-131 .

Times and periods of publishing judicial sales are determined by paragraph (c) of subsection (1) of this section. OAG 66-769 .

The notice to be given to the public under KRS 66.070 (repealed) must comply with paragraph (d) of subsection (1) of this section. OAG 67-400 .

In publishing an annexation ordinance, the requirements of this section should be followed. OAG 68-152 .

Every ordinance of a fourth-class city council (except those relating to a housing commission) must be published pursuant to subsection (4) of KRS 86.090 (repealed) and paragraph (a) of subsection (1) of this section. OAG 68-323 .

In view of the conflicting provisions between this section and KRS 118.430 (repealed), a proposed constitutional amendment should be published in the manner provided in both sections. OAG 69-309 .

This section requires that ordinances must be published one time only and within 30 days after their passage. OAG 69-688 .

Under paragraph (c) of subsection (1) of this section, notice of judicial sale must be published once a week for three successive weeks and if, through an error, the notice was omitted from the paper, the advertisement of the notice would have to begin anew and the error could not be corrected by printing the notice twice in one issue or by printing an extra handbill. OAG 70-29 .

In order to determine which newspaper has the largest bona fide circulation, the fiscal court should require each paper to submit a certified statement concerning its total circulation within the county. OAG 70-43 .

The publication required under KRS 116.190 (repealed) is to be made after the entry of the order ordering alteration of a voting precinct, pursuant to paragraph (a) of subsection (1) of this section. OAG 70-87 .

Paragraph (c) of subsection (1) of this section requiring the publication of certain legal notices one each week for three successive weeks must be substantially complied with, and the publication of two issues in one week with one of the issues being backdated one week is not substantial compliance. OAG 70-120 .

KRS 424.340 as amended contemplates only one publication and this section does not apply. OAG 70-523 .

KRS 424.340 does not refer to this section, but does refer to KRS 424.120 . OAG 70-523 .

A resolution authorizing a mayor to contract with the bureau of transportation for the resurfacing of city streets is not an ordinance within the meaning of KRS 86.090 (repealed) and its publication is not required by that or this section. OAG 74-710 .

The full text of a proposed zoning ordinance need not be published since KRS 100.207 provides an exception to the normal publication requirements as set forth in this section. OAG 75-141 .

A suitable advertisement of forfeiture of a deadly weapon for “official state use” should be made in compliance with subdivision (1)(b) of this section and should contain a description of the weapon and its serial number and such notice should be published in an appropriate newspaper that has circulation within the jurisdiction of the circuit court having the contraband material. OAG 75-585 .

Inasmuch as the publication requirement of this section applies to individual ordinances as they are adopted by a particular city, several cities which have adopted the same ordinance could not meet the requirement by one publication of the ordinance. OAG 77-385 .

This section would be applicable to a special election, however, since KRS 118.740 requires at least a 15-day minimum deadline for publishing the notice, the seven-day minimum requirement under this section would not be applicable, so the publication should, if possible, be made between the 15th and the 21st day before the election. OAG 79-12 . (opined prior to 1990 amendment to KRS 118.740 )

Advertisements for bids for franchises as required by Ky. Const., § 164, must be published in accordance with subdivision (1)(b) of this section, while notice of the enactment of the franchise ordinance must follow subdivision (1)(a) of this section. OAG 79-303 .

If reasonably detailed specifications describing the scope of a project are first prepared, such that competing potential bidders can know with particularity the product for which a bid might be tendered, and bids are solicited in relation to those specifications in conformity with this section and KRS 424.140 , the design/build approach to construction procurement might be utilized by a county. OAG 92-143 .

Research References and Practice Aids

Kentucky Law Journal.

Comments, Fuentes v. Shevin: The Application of Constitutional Due Process to the Garageman’s Lien in Kentucky, 62 Ky. L.J. 1133 (1973-1974).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Enforcement of Mortgage Liens, § 301.00.

Caldwell’s Kentucky Form Book, 5th Ed., Judgment and Order of Sale, Plaintiff is First Lien Holder, Form 301.07.

Caldwell’s Kentucky Form Book, 5th Ed., Petition to County Judge/Executive for Establishment of Sewer Construction, District (KRS Ch. 76), Form 338.05.

424.140. Contents or form of advertisements.

  1. Any advertisement of a hearing, meeting or examination shall state the time, place and purpose of the same.
  2. Any advertisement of an election shall state the time and purpose of the election, and if the election is upon a public question the advertisement shall state the substance of the question.
  3. Any advertisement for bids or of a sale shall describe what is to be bid for or sold, the time and place of the sale or for the receipt of bids, and any special terms of the sale.
  4. Where any statute provides that, within a specified period of time after action by any governmental agency, unit or body, members of the public or anyone interested in or affected by such action shall or may act, and it is provided by statute that notice of such governmental action be published, the advertisement shall state the time and place when and where action may be taken.

History. Enact. Acts 1958, ch. 42, § 4; 1960, ch. 168, § 1.

NOTES TO DECISIONS

1.Election.

Where day, date and hour of election were included in notice as well as statement that issue was continuation or not of alcohol sales, such notice was sufficient. McDonald v. Whallen, 415 S.W.2d 840, 1967 Ky. LEXIS 335 ( Ky. 1967 ).

2.Publication.

Where notice of filing petition for annexation was published more than 21 days before the date fixed in the advertisement as the last day to remonstrate, the annexation was invalid. St. Matthews v. Beha, 549 S.W.2d 842, 1977 Ky. App. LEXIS 677 (Ky. Ct. App. 1977).

3.—Insufficiency.

In the absence of a showing of prejudice to the remonstrants, a defect in the publication of the notice of the commencement of the annexation proceeding should have only one consequence, namely, that no defense to the annexation proceeding need be filed until after a proper notice is published. Wakefield v. Shelbyville, 563 S.W.2d 756, 1978 Ky. App. LEXIS 491 (Ky. Ct. App. 1978).

The publication of the entire notice of annexation statute (KRS 81A.420 ) does not reasonably inform the general public of the time frame for protesting an annexation proposal; in preference to giving the public notice by publishing KRS 81A.420 in its entirety, a simple “notice” publication conforming to KRS 424.130(1)(b) and this section, informing the interested public of their right to protest would have been sufficient and not reasonably susceptible to misinterpretation. Merritt v. Campbellsville, 678 S.W.2d 788, 1984 Ky. App. LEXIS 625 (Ky. Ct. App. 1984).

The verbatim publication of the entire notice of annexation statute (KRS 81A.420 ) did not constitute sufficient notice of a city’s proposed annexation in light of KRS 424.130 and subsection (4) of this section, so as to give interested parties a fair opportunity to oppose the annexation, and for that reason the annexation was invalid. Merritt v. Campbellsville, 678 S.W.2d 788, 1984 Ky. App. LEXIS 625 (Ky. Ct. App. 1984).

4.Time Limitation.

Although the period set for remonstrance is vague, notification of the time to remonstrate is not required; a city can simply ask the court to fix by order the last day for remonstrance. St. Matthews v. Beha, 549 S.W.2d 842, 1977 Ky. App. LEXIS 677 (Ky. Ct. App. 1977).

In the absence of any reference to the time within which a remonstrant could respond to the petition for annexation, a fourth-class city’s notice of the commencement of annexation of litigation did not substantially comply with KRS 81.210 (repealed) and subsection (4) of this section. Wakefield v. Shelbyville, 563 S.W.2d 756, 1978 Ky. App. LEXIS 491 (Ky. Ct. App. 1978).

5.Notice.

The notice requirement of KRS 412.070 may be fulfilled by taking out an advertisement pursuant to KRS 424. Barrett v. Reynolds, 817 S.W.2d 439, 1991 Ky. LEXIS 146 ( Ky. 1991 ).

Cited in:

Cole v. Stephens, 582 S.W.2d 657, 1979 Ky. App. LEXIS 419 (Ky. Ct. App. 1979); Robinson v. Ehrler, 691 S.W.2d 200, 1985 Ky. LEXIS 249 ( Ky. 1985 ).

Opinions of Attorney General.

There is no legal requirement that a planning commission publish, in its notice of proposed zoning change, the legal description of the property based upon recent surveys or the deed of the property involved, unless the commission has so required in rules and regulations enacted pursuant to KRS 100.167 ; accordingly, a brief, concise description of the property and the purpose of the hearing as well as the time and place of the hearing, as required by this section, would be legally sufficient notice since it would give the average newspaper reader reasonable warning that the property is the subject of a rezoning request. OAG 81-301 .

If reasonably detailed specifications describing the scope of a project are first prepared, such that competing potential bidders can know with particularity the product for which a bid might be tendered, and bids are solicited in relation to those specifications in conformity with KRS 424.130 , and this section, the design/build approach to construction procurement might be utilized by a county. OAG 92-143 .

424.145. Alternative Internet and newspaper publication procedures for local governments. (See LRC Note)

  1. As used in this section:
    1. “Local government” means:
      1. Any urban-county government;
      2. Any consolidated local government;
      3. Any charter county;
      4. Any unified local government; and
      5. In any county containing a population of eighty thousand (80,000) or more based upon the most recent federal decennial census, the county itself or any:
        1. City within the county;
        2. Special district within the county;
        3. School district within the county; or
        4. Special purpose governmental entity within the county; and
    2. “Notice Web site” means an Internet Web site that is maintained by a local government or a third party under contract with the local government, which contains links to the legal advertisements or notices electronically published by the local government.
  2. Local governments may satisfy the requirements of this chapter or any other provision of law requiring the publication of an advertisement in a newspaper by following the alternative procedures established in this section.
  3. In lieu of newspaper publication, a local government may post the required advertisement online on a notice Web site operated by the local government that is accessible to the public at all times in accordance with subsections (4) to (9) of this section. Publication of an advertisement shall be deemed to have occurred on the date the advertisement is posted on the local government’s notice Web site.
  4. In conjunction with an alternative Internet posting, the local government shall publish a newspaper advertisement one (1) time providing notice that the public may view the full advertisement on the notice Web site. The newspaper advertisement shall:
    1. Be not more than six (6) column inches and meet the technical requirements of KRS 424.160(1);
    2. Be published within ten (10) days of the alternative posting on the notice Web site when the purpose of the posting is to inform the public of a completed act, including those acts specified in KRS 424.130(1)(a), or within three (3) days of the posting when the purpose of the posting is to inform the public of the right to take a certain action, including the events specified in KRS 424.130(1)(b) and (d);
    3. Inform the public of the subject matter of the alternative posting, inform the public of its right to inspect any documents associated with the Internet posting by contacting the local government, and provide a mailing and a physical address where a copy of the document may be obtained and the Web address if the document is available online; and
    4. Provide the full Uniform Resource Locator (URL) of the notice Web site address and the full Uniform Resource Locator (URL) of the address where the full advertisement may be directly viewed along with a telephone number for the local government.
  5. In addition to specific legal requirements applicable to a particular type of advertisement:
    1. The contents of each alternative Internet posting shall meet the minimum requirements of KRS 424.140 ; and
    2. The local government shall make the alternative Internet posting in accordance with the times and periods established by KRS 424.130 , and shall actively maintain the alternative Internet posting on its public Web site:
      1. Until the deadline passes or the event occurs if the substance of the advertisement is intended to advise the public of a time to take action or the occurrence of a future event;
      2. For at least ninety (90) days if the substance of the advertisement is to inform the public of an action taken by the local government, such as the enactment of an ordinance; or
      3. For one (1) year or until updated or replaced with a more recent version if the substance of the advertisement is intended to inform the public about the financial status of the local government, such as annual audits or the budget.
  6. The local government shall display access to any and all alternative Internet postings made pursuant to this section prominently on the homepage or first page of the notice Web site. The section of the notice Web site containing any postings and the actual advertisement shall be made in a manner where the public can readily and with minimal effort identify the location of and easily retrieve the advertisements.
  7. The local government shall provide a conspicuous statement on its notice Web site that individuals who have difficulty in accessing the contents of posted advertisements may contact the local government for information regarding alternative methods of accessing advertisements, which shall include the telephone number of the local government.
  8. As proof of an alternative Internet posting to satisfy any newspaper publication requirement, the local government shall memorialize the posting by capturing the posting in electronic or paper format and shall complete an affidavit signed by the person responsible for causing publications under KRS 424.150 , stating that the local government satisfied the publication requirement by alternative Internet posting. The affidavit shall specify the active dates of the notice Web site posting, the specific statutory requirements being satisfied by the alternative Internet posting, and the notice Web site address where the alternative posting was located, including the full Uniform Resource Locator (URL) used for the posting. The local government shall retain the captured posting and the affidavit by the person responsible for publication for a period of three (3) years. Together, the captured posting and the affidavit shall constitute prima facie evidence that the posting was made and occurred as stated within the affidavit.
  9. The failure to cause the newspaper advertisement required in subsection (4) of this section shall not void the action of the local government or negate the enforceability of the matter advertised by alternative Internet posting. Any person who violates the requirements of subsection (4) of this section shall be subject to the penalties provided in KRS 424.990 .

HISTORY: 2020 ch. 87, § 1, effective July 15, 2020.

Legislative Research Commission Notes.

(7/15/2020). 2020 Ky. Acts ch. 91, sec. 73, which was effective April 15, 2020, stated the following:

“ Publishing Requirements : Notwithstanding KRS 83A.060 , 91A.040 , and Chapter 424, a county containing a population of more than 90,000 or any city within a county containing a population of more than 90,000, as determined by the 2010 United States Census, may publish enacted ordinances, audits, and bid solicitations by posting the full ordinance, the full audit report including the auditor's opinion letter, or the bid solicitation on an Internet Web site maintained by the county or city government for a period of at least one (1) year. If a county or city publishes ordinances, audits, or bid solicitations on an Internet Web site, the county or city shall also publish an advertisement, in a newspaper qualified in accordance with KRS 424.120 , with a description of the ordinances, audits, or bid solicitations published on the Internet Web site, including the Uniform Resource Locator (URL) where the documents can be viewed. Any advertisement required to be published in a newspaper under KRS Chapter 424 shall contain the following statement at the end of the advertisement:

“This advertisement was paid for by [insert the name of the governmental body required to advertise in a newspaper] using taxpayer dollars in the amount of $ [insert the amount paid for the advertisement].”

424.147. Local government posting on Internet if newspaper makes error in publication or fails to publish.

  1. If a newspaper qualified under KRS 424.120 either makes an error or fails in time or substance to make a publication in accordance with KRS 424.130 or 424.140 after receiving the information to be published, a city or county affected thereby may, after it has notice of the error or failure and to avoid undue delay of governmental process and procedure, remedy the error or failure by causing the publication to occur on a notice Web site as defined in KRS 424.145 .
  2. Notwithstanding the time requirements imposed by KRS 424.130 , a city or county publishing to remedy an error or failure of a newspaper under subsection (1) of this section shall immediately cause the publication of the matter on a notice Web site, and this remedial Web site publication shall be deemed in full compliance with the requirements of this chapter.

HISTORY: 2020 ch. 87, § 2, effective July 15, 2020.

424.150. Person responsible for publishing.

When any statute providing for newspaper publication of an advertisement does not designate the person responsible for causing the publication to be made, the responsible person shall be:

  1. Where the advertisement is of the filing of a petition or application, the person by whom the same is filed;
  2. Where the advertisement is of an activity or action of:
    1. An individual public officer, the officer himself;
    2. A city, the city clerk if there be one; if not, the mayor;
    3. A county, the county clerk;
    4. A district, or a board, commission or agency of a city, county or district, the chief administrative or executive officer or agent thereof;
    5. A court, the clerk thereof;
    6. A state department or agency, the head thereof.

History. Enact. Acts 1958, ch. 42, § 5; 1960, ch. 168, § 1; 1978, ch. 384, § 525, effective June 17, 1978; 1986, ch. 23, § 15, effective July 15, 1986.

Opinions of Attorney General.

The city legislative body would have the responsibility of publishing notice of a special election to be held on general election day concerning an indebtedness that would exceed the city’s annual income. OAG 67-400 .

If the advertisement is of an activity or action of the county generally, the county clerk is responsible for placing the advertisement and making the decision as to the qualifying newspaper. OAG 75-215 .

The decision as to the qualifying newspaper should be made by the official immediately responsible for placing the advertisement, where said advertisement is of an activity or action of such officer. OAG 75-215 .

The county clerk was given the duty of procuring publication of matters of fiscal court action because the county clerk was generally clerk of the fiscal court, but now it is possible that in any county, except Jefferson, the county clerk may decide to not be clerk of fiscal court, in which case the logical reason for performing this clerical duty would no longer exist, and, therefore, the clerical duty of looking after publication of county ordinances was really intended to be imposed upon the clerk of fiscal court. OAG 78-521 .

424.160. Rates for newspaper advertising required by law.

  1. For all newspaper advertising required by law, the publisher is entitled to receive payment for each insertion at a rate per column inch. The advertisement shall be set in no larger than seven (7) point type on solid leading. The rate shall not exceed the lowest noncontract classified rate paid by advertisers. The terms and conditions of any volume discounts given to commercial customers shall be extended to public agencies of the Commonwealth of Kentucky. Newspapers shall give all local public agencies a written notice of at least thirty (30) days of an advertising rate increase.
  2. If by law or by the nature of the matter to be published, a display form of advertisement is required, or if the person or officer responsible for causing an advertisement to be published determines in his discretion that a display form is practicable or feasible, and so directs the newspaper, the advertisement shall be published in display form and the newspaper shall be entitled to receive its established display rate.
  3. If it is provided by statute that an advertisement shall be published of the filing of a petition or application seeking official action, the filing, if required by other than a governmental official or agency, shall not be deemed complete unless there is deposited with the petition or application an amount sufficient to pay the cost of publication.
  4. The expense of advertisements in judicial proceedings shall be taxed as costs by the clerk of the court.

History. Enact. Acts 1958, ch. 42, § 6; 1960, ch. 168, § 1; 1982, ch. 430, § 4, effective July 15, 1982; 1992, ch. 396, § 1, effective July 14, 1992; 2006, ch. 8, § 5, effective July 12, 2006.

NOTES TO DECISIONS

1.Rates.

Where law required certain publication to be made in newspaper having largest general circulation in county, publication in such paper was mandatory although competing paper offered to publish at a lower rate. Shelby County Fiscal Court v. Cosine, 174 Ky. 504 , 192 S.W. 626, 1917 Ky. LEXIS 211 ( Ky. 1917 ) (decided under prior law).

Compensation was allowed for solid printing, eight-point measure, and hence, if advertisement is displayed by giving extra space and using larger type, amount allowed should be reduced to amount allowable if printing had been done as provided by law. Cornett v. Muncy, 228 Ky. 390 , 15 S.W.2d 251, 1929 Ky. LEXIS 557 ( Ky. 1929 ) (decided under prior law).

2.—Liability.

Under law which provides for the advertisement in a newspaper of sheriff’s sale of property under execution, the sheriff is not personally liable to the publisher for the cost of the advertisement in the absence of an agreement to that effect; the publisher must look to the party for whose benefit the advertisement is made. Ellis v. Casey, 12 Ky. L. Rptr. 508 (1890) (decided under prior law).

3.—Federal Receivership.

In federal equity receiverships, reasonable allowance for publication of notices of sale of realty would be fairly fixed by this statute, notwithstanding provisions of federal law fixed inadequate rates for printers’ fees. Thornton v. Gault, 18 F. Supp. 112, 1937 U.S. Dist. LEXIS 2064 (D. Ky. 1937 ) (decided under prior law).

Cited in:

Vincent v. Bowling Green, 349 S.W.2d 694, 1961 Ky. LEXIS 60 ( Ky. 1961 ).

Opinions of Attorney General.

Under this section regarding material required to be advertised, such material should not be printed in newspapers in a point type smaller than eight-point type and the actual rate for publishing such material must be based upon the space required by eight-point type, even if a larger type is used. OAG 77-141 .

Although the face of a sample ballot could be printed with a smaller or larger type, the rate charged for the newspaper advertising must be based on the rate for an eight-point type. OAG 77-405 .

Acts 1982, ch. 430, which amends this section and several other statutes relating to publication requirements of cities, is basically an amendment of the municipal publication requirements and does not affect the city budget process, financial matters in cities or matters relating to the administration of city finances. It gives a city a choice as to which of two devices relating to finances and expenditures must be published annually rather than requiring that they both be published and affects what a city publishes after the completion of the fiscal year, but does not affect the activities of a city during the fiscal year; it does not impair any vested rights. OAG 82-353 .

As to its publication provisions for municipal governments, Acts 1982, ch. 430, effective July 15, 1982, is applicable to those municipal governments for the fiscal year July 1, 1981 to June 30, 1982. OAG 82-353 .

424.170. Proof of publication.

  1. The affidavit of the publisher or proprietor of a newspaper, stating that an advertisement has been published in his newspaper and the times it was published, attached to a copy of the advertisement, constitutes prima facie evidence that the publication was made as stated in the affidavit.
  2. The affidavit of the person responsible for publishing as described in KRS 424.150 , stating that an advertisement has been delivered by first class mail to each residence within the publication area, attached to a copy of the advertisement, constitutes prima facie evidence that the publication was made as stated in the affidavit and that the expenditure for the cost of postage, all supplies, and reproduction of the advertisement did not exceed the cost of newspaper publication of the advertisement.

History. Enact. Acts 1958, ch. 42, § 7; 1982, ch. 430, § 5, effective July 15, 1982.

NOTES TO DECISIONS

Cited in:

Vincent v. Bowling Green, 349 S.W.2d 694, 1961 Ky. LEXIS 60 ( Ky. 1961 ).

Opinions of Attorney General.

Acts 1982, ch. 430, which amends this section and several other statutes relating to publication requirements of cities, is basically an amendment of the municipal publication requirements and does not affect the city budget process, financial matters in cities or matters relating to the administration of city finances. It gives a city a choice as to which of two devices relating to finances and expenditures must be published annually rather than requiring that they both be published and affects what a city publishes after the completion of the fiscal year, but does not affect the activities of a city during the fiscal year; it does not impair any vested rights. OAG 82-353 .

As to its publication provisions for municipal governments, Acts 1982, ch. 430, effective July 15, 1982, is applicable to those municipal governments for the fiscal year July 1, 1981 to June 30, 1982. OAG 82-353 .

424.180. Advertisements of state agencies.

Any advertisement which a state officer, department or agency is required by law to have published shall, if intended to give statewide notice, be published in such newspaper or newspapers, to be designated by the Finance and Administration Cabinet, as will provide reasonable statewide coverage, unless the Finance and Administration Cabinet approves an alternative and cost-effective method of delivery. If the advertisement particularly affects a local area, it shall be published, for each county in the area, in a newspaper qualified under KRS 424.120 to publish advertisements for such county, unless the Finance and Administration Cabinet approves an alternative and cost-effective method of delivery. The latter publication shall be in addition to the former, if the advertisement affects the state at large as well as the local area.

History. Enact. Acts 1958, ch. 42, § 8; 2006, ch. 252, Pt. XXI, § 1, effective April 25, 2006.

Research References and Practice Aids

Cross-References.

Alcoholic beverages, licenses and taxes, notice of intention to apply for license, KRS 243.360 .

Conveyances and encumbrances, general cross indexes, adoption and maintenance, report of examining commission notice, KRS 382.205 .

Department of education, duties of superintendent of public instruction, regulations pertaining to textbook samples, KRS 156.410 .

Department of fish and wildlife resources:

Notices and publications, KRS 150.022 .

Powers of department to make regulations, publication, KRS 150.025 .

Department of highways, advertisements for bids, KRS 176.070 .

Local health units and officers, visiting nurses:

Contracts for work or materials, day labor, KRS 212.460 .

Elections in one county, KRS 212.080 .

Promotion of agriculture and horticulture, revenue bonds, KRS 247.180 .

Sanitation districts and water pollution control:

Contracts for work, materials and supplies, how let, KRS 220.290 .

Investigation and establishment of territorial boundaries, inclusion of city, notice, KRS 220.536 .

Publication of application to create district, KRS 220.090 .

424.190. Alternatives to newspaper publication abolished — Exception — Information required to be sent to Department for Local Government.

  1. If a statute gives discretion to a public officer or agency or governmental body as to the method of making an advertisement required by the statute, and if a statute provides that an advertisement may be made either by posting or by newspaper publication, the advertisement shall be made by newspaper publication in accordance with the provisions of this chapter, except as provided in subsection (2) of this section.
  2. Any city may, when the cost of the newspaper publication exceeds the cost of postage, supplies, and reproduction for the alternative method of publication, in lieu of newspaper publication of advertisement, substitute delivery of a copy of the advertisement by first class mail to each residence within the publication area. Any city electing to use the alternative publication methods authorized by this section shall forward an electronic copy of its audit report or an electronic copy of its financial statement, whichever is applicable, to the Department for Local Government in accordance with KRS 91A.040 and 424.220 .

HISTORY: Enact. Acts 1958, ch. 42, § 9; 1982, ch. 430, § 6, effective July 15, 1982; 1990, ch. 52, § 2, effective July 13, 1990; 1992, ch. 34, § 2, effective July 14, 1992; 1998, ch. 69, § 78, effective July 15, 1998; 2007, ch. 47, § 94, effective June 26, 2007; 2010, ch. 117, § 89, effective July 15, 2010; 2018 ch. 10, § 4, effective July 14, 2018.

NOTES TO DECISIONS

Cited in:

Chumley v. Williams, 639 S.W.2d 557, 1982 Ky. App. LEXIS 252 (Ky. Ct. App. 1982).

Opinions of Attorney General.

Under this section ordinances passed by a city of the fourth class are required to be published in a newspaper. OAG 60-224 .

Subsection (2) of KRS 424.120 supersedes KRS 87.050 (repealed) and would require ordinances to be published in a qualified newspaper even though there was no newspaper published in the city. OAG 62-546 .

The sale of real property for delinquent taxes must be at a public sale, advertised in a newspaper of local publication, with anyone having the right to bid on such property before a purchase of any of the property is valid. OAG 63-56 .

For a sixth-class city, KRS 81.240 (repealed) controls the publication of an annexation ordinance and where there was no daily or weekly newspaper in the city, the annexation ordinance would have to be published by posting. OAG 63-983 .

The county budget must be published in full and a synopsis would not be sufficient. OAG 63-131 .

Acts 1982, ch. 430, which amends this section and several other statutes relating to publication requirements of cities, is basically an amendment of the municipal publication requirements and does not affect the city budget process, financial matters in cities or matters relating to the administration of city finances. It gives a city a choice as to which of two devices relating to finances and expenditures must be published annually rather than requiring that they both be published and affects what a city publishes after the completion of the fiscal year, but does not affect the activities of a city during the fiscal year; it does not impair any vested rights. OAG 82-353 .

As to its publication provisions for municipal governments, Acts 1982, ch. 430, effective July 15, 1982, is applicable to those municipal governments for the fiscal year July 1, 1981 to June 30, 1982. OAG 82-353 .

Under KRS 91A.040 (9), cities of the sixth class are given the authority to utilize the alternative publication method authorized by subsection (2) of this section in order to comply with the provisions of KRS 91A.040 . OAG 82-350 .

Where a city of the sixth class has already prepared an audit, it should either utilize the alternative publication method under subsection (2) of this section or the publication requirements authorized by KRS 91A.041 (repealed) if it qualifies, or publish the audit as provided in subsections (7) and (8) of KRS 91A.040 . OAG 82-384 .

If a city desires to use the alternative to publication provided for in subsection (2) of this section, it is mandatory that it be done by first class mail as the statute makes no exception and the language is unambiguous; thus, to hand deliver a copy to each residence in the city would not suffice. OAG 82-551 .

Research References and Practice Aids

Cross-References.

Sanitation districts and water pollution control, publication of application to create district, KRS 220.090 .

424.195. Supplementation of printed notice by broadcast in certain cases.

  1. Any official of the Commonwealth of Kentucky or any of its political subdivisions who is required by law to publish any legal notice or notice of event may supplement, not to exceed twelve (12) publications unless otherwise ordered by a court of competent jurisdiction thereof by use of radio or television spot announcements, or both, when, in his judgment, the public interest will be served thereby; except, that notices by political subdivisions may be made only by stations having a broadcast studio within the county of origin of the legal notice, and that broadcast notices shall call attention solely to published or posted notices required by statute.
  2. Each radio or television station broadcasting a legal notice or notice of event shall for a period of three (3) months subsequent to such broadcast retain at its office a copy of the transcript of the text of the notices actually broadcast and such shall be available for public inspection.
  3. The radio or television station which broadcasts the legal notice authorized by this section shall be entitled to receive payment of an amount equal to the customary charges of such station for such service.
  4. The publication of legal notices under this section shall be restricted to legal notices relating to those official acts of public officers requiring a final determination by order of any court of competent jurisdiction in the Commonwealth.

History. Enact. Acts 1970, ch. 100, § 1.

424.200. Notice when no newspaper available. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 42, § 10) was repealed by Acts 1960, ch. 168, § 2.

424.210. Official newspapers abolished.

No official newspaper shall be designated by any governmental unit for the publication of advertisements for such unit.

History. Enact. Acts 1958, ch. 42, § 11.

Opinions of Attorney General.

The fiscal court is prohibited from designating an official newspaper by the provisions of this section. OAG 69-173 .

424.215. Advertising by public agencies — Rates charged.

Notwithstanding KRS 65.070 , 83A.060 , 91A.040 , 160.463 , 424.180 , 424.190 , 424.220 , 424.230 , 424.250 , 424.260 , 424.270 , 424.330 , any public agency required to advertise or publish notices or documents in a newspaper shall be charged the lowest rate generally charged for advertising by the newspaper.

History. Enact. Acts 2005, ch. 106, § 11, effective June 20, 2005.

Matters Required To Be Published

424.220. Financial statements — Contents — Publication requirements — Exempted officers.

  1. Excepting officers who are exempted under subsection (8) of this section, every public officer of any school district, city, county, or district less than a county, or of any board, commission, or other authority of a city, county, or district whose duty it is to collect, receive, have the custody, control, or disbursement of any funds collected from the public in any form shall, at the expiration of each fiscal year, prepare an itemized, sworn statement of the funds collected, received, held, or disbursed by him or her during the fiscal year just closed, unless he or she has complied with KRS 424.230 .
  2. The statement shall show:
    1. The total amount of funds collected and received during the fiscal year from each individual source; and
    2. The total amount of funds disbursed during the fiscal year to each individual payee. The list shall include only aggregate amounts to vendors exceeding one thousand dollars ($1,000).
  3. Only the totals of amounts paid to each individual as salary or commission and public utility bills shall be shown. The amount of salaries paid to all nonelected county employees shall be shown as lump-sum expenditures by category, including but not limited to road department, jails, solid waste, public safety, and administrative personnel.
  4. The financial reporting and publishing requirements for a school district are provided in KRS 160.463 .
  5. The officer shall procure and include in or attach to the financial statement, as a part thereof, a certificate from the cashier or other proper officer of the banks in which the funds are or have been deposited during the past year, showing the balance, if any, of funds to the credit of the officer making the statement.
  6. To provide notice to the public that the city’s financial statement has been completed as required by this section:
    1. The appropriate officer of a city that has performed an audit under KRS 91A.040 for the fiscal year or years, including the appropriate officer of any municipally owned electric, gas, or water system, shall publish the audit report in accordance with KRS 91A.040 (9); and
    2. The appropriate officer of a city that has not conducted an annual audit for the fiscal year under one (1) of the exceptions provided in KRS 91A.040(2), (3), or (4) shall publish a legal display advertisement of not less than six (6) column inches in a newspaper qualified under KRS 424.120 that the statement required by subsection (1) of this section has been prepared and that copies have been provided to each local newspaper of general circulation, each news service, and each local radio and television station which has on file with the city a written request to be provided a statement. The advertisement shall be published within ninety (90) days after the close of the fiscal year.
  7. To provide notice to the public that the county’s financial statement has been completed as required by this section, the appropriate officer of a county shall publish the county’s audit, prepared in accordance with KRS 43.070 or 64.810 , in the same manner that city audits are published in accordance with KRS 91A.040(9).
  8. The provisions of this section shall not apply to officers of:
    1. A city of the first class;
    2. A county containing a city of the first class;
    3. A consolidated local government;
    4. An urban-county government;
    5. A city with a population equal to or greater than twenty thousand (20,000) based upon the most recent federal decennial census;
    6. A public agency or joint public agency of a:
      1. City of the first class;
      2. Consolidated local government; or
      3. County containing a city of the first class; or
    7. A school district of a:
      1. City of the first class;
      2. Consolidated local government; or
      3. County containing a city of the first class.

HISTORY: Enact. Acts 1958, ch. 42, § 12; 1960, ch. 168, § 1; 1962, ch. 170, § 1; 1976, ch. 71, § 1; 1978, ch. 384, § 526, effective June 17, 1978; 1982, ch. 430, § 7, effective July 15, 1982; 1984, ch. 277, § 1, effective July 13, 1984; 1988, ch. 32, § 2, effective July 15, 1988; 1990, ch. 52, § 3, effective July 13, 1990; 1998, ch. 69, § 79, effective July 15, 1998; 2002, ch. 346, § 232, effective July 15, 2002; 2006, ch. 8, § 6, effective July 12, 2006; 2011, ch. 46, § 2, effective June 8, 2011; 2014, ch. 92, § 309, effective January 1, 2015; 2018 ch. 171, § 8, effective April 14, 2018; 2018 ch. 207, § 8, effective April 27, 2018; 2018 ch. 10, § 2, effective July 14, 2018; 2019 ch. 91, § 2, effective June 27, 2019.

NOTES TO DECISIONS

1.Standing to Sue.

Allegation in plaintiff’s complaint that city board of trustees did not publish financial statements for city pursuant to this section had statutory remedy provided by the legislature which conferred standing on citizens of the governmental unit to bring actions to compel adherence to the law. Fish v. Elliott, 554 S.W.2d 94, 1977 Ky. App. LEXIS 756 (Ky. Ct. App. 1977).

2.Circulation.

The newspaper with the greatest bona fide paid circulation in the county is entitled to publish the county treasurer’s report and not the paper which has the largest overall circulation which includes a number of counties. Whitley Whiz, Inc. v. Whitley County, 812 S.W.2d 149, 1991 Ky. LEXIS 46 ( Ky. 1991 ).

Cited in:

Vincent v. Bowling Green, 349 S.W.2d 694, 1961 Ky. LEXIS 60 ( Ky. 1961 ); Williams v. Commonwealth, 392 S.W.2d 454, 1965 Ky. LEXIS 286 ( Ky. 1965 ).

Opinions of Attorney General.

The statute relating to the publication of financial statements would not be applicable to municipal housing commissions established under KRS Chapter 80. OAG 60-486 .

The financial statement must be published in detail and the publication of a copy of the audit would not be sufficient. OAG 60-794 .

The financial report on the city’s waterworks should be published in accordance with the provisions of the statute. OAG 61-477 .

A city in its financial statement must show the amount of funds collected and received, from what sources received, the amount disbursed, the date of each disbursement, for what purpose expended, and to whom paid, the only exception being the totals of amounts paid to any individual as salary or commission and public utility bills. OAG 64-129 .

Funds of a county or city-county health department contributed by the state government or funds derived from the federal government for which the state acts as a conduit and retains custody would be exempt from the annual publication requirements of the statute. OAG 64-330 .

Money of a county or city-county health department which is raised locally and derived from a taxing district, the fiscal court, or city government, or from various voluntary contributions, would require the local health department to publish a financial statement. OAG 64-330 .

The county treasurer is the officer required to publish the financial statement of the county and the fiscal court is under a corresponding duty to make funds available to pay for the publication. OAG 64-627 .

The express requirements of the statute cannot be dispensed with by filing a statement with the fiscal court, the county judge and the county clerk. OAG 64-627 .

There is no authorization for additional compensation to the county treasurer for preparing and causing to be published the annual financial statement. OAG 65-100 .

A municipal water commission is required to comply with the provisions of this section relating to the publication of an itemized financial statement of a municipally owned water company. OAG 67-219 .

Under this section, the appropriate officer of a board or commission operating a municipally owned waterworks of a city of the fifth class as a separate entity of the city is required to publish a financial statement. OAG 67-233 .

A school district must publish the financial statement required by this section relative to the receipt and disbursement of funds received under the elementary and secondary education act, title I, even though the source of the funds is entirely federal money. OAG 67-422 .

The publication of the auditor’s report required in KRS 92.405 (repealed) is in lieu of the publication requirements of this section. OAG 68-314 .

The northern Kentucky area planning commission is a “subdivision” within the meaning of this section and is required to comply with the requirements of this section relating to the publication of financial statements. OAG 69-396 .

This section does not permit the publication of disbursements by listing each vendor’s name and the total amount paid to each during the year. OAG 69-396 .

In a county containing a city of the third class as its largest city, the Circuit Court clerk, county court clerk, sheriff, county judge, and county treasurer must all publish the financial statement required by this section, and there is no provision for the consolidation of reports. OAG 69-582 .

A member of the city council and chairman of the finance committee would be authorized to review the payroll tax records in the city treasurer’s office. OAG 70-353 .

Cities of the fifth class are required to publish a financial statement pursuant to the provisions of this section. OAG 70-371 .

This section must be followed by the county treasurer as it directs. OAG 70-786 .

In a fifth-class city, the police judge’s records are not outside the scope of a regular audit of the city’s records. OAG 71-57 .

The name of the teacher must be reflected along with the gross or total salary paid. OAG 71-128 .

Although for libraries formed by the petition method the reports required under both subdivision (2) of KRS 173.770 and this section are necessary, the library board, in making its report under subdivision (2) of KRS 173.770 need only show the totals of amounts paid to each individual as salary and public utility bills with any other expenditures shown by individual voucher. OAG 71-438 .

The publication requirements do not apply to a mental health and mental retardation center which is largely supported through federal, state and county aid but which is a charitable, nonstock, nonprofit corporation. OAG 71-468 .

Cities of the fifth class are required to publish an annual financial statement pursuant to the terms of this section. OAG 72-45 .

This section does not require a fifth- or sixth-class city to have its books audited by a certified public accountant. OAG 72-185 .

As the county health, library, and extension districts are all taxing units entrusted with the custody and control of public funds, they come within the scope of this section and must file the appropriate financial statements. OAG 72-479 .

This section applies to the Union County air board, the Union County planning commission and to the Morganfield Airport, as all are entrusted with the control and custody of public funds. OAG 72-479 .

This section does not apply to the Morganfield municipal housing authority, as a city housing commission is a state agency. OAG 72-479 .

Since the hospital board of Hardin Memorial Hospital is owned and operated by Hardin County pursuant to KRS 216.040 (repealed), the board has the duty to publish the financial statement called for by this section. OAG 73-297 .

Where a member of a county board of education and her husband own a weekly newspaper, the only newspaper in the county, school financial statements and legal notices could be published in such newspaper pursuant to this section and KRS 424.120 without violating KRS 160.180 . OAG 73-438 .

Cities of the third class are not required to publish a detailed financial statement but in lieu thereof may publish an audit report as provided by KRS 92.403 and 92.405 (both repealed). OAG 74-89 ; 74-214.

A utility commission created by a city would be required to publish a statement of its receipts and disbursements as required by this section, independent of the city’s obligation to publish a statement of funds under its control. OAG 74-121 .

As the annual audit of the financial affairs of a third-class city need not comply with the requirements of this section, the 60-day publication requirement following the close of the fiscal year would not be applicable. OAG 74-173 .

An ordinance to establish an Industrial Development Authority which requires an annual audit of the Authority is valid under this section and KRS 152.900 . OAG 74-864 .

This section is not applicable to a police judge in a third-class city. OAG 75-173 .

An annual financial statement is required of the northern Kentucky convention and visitors commission but not the northern Kentucky convention and visitors bureau which is the commission’s staff arm and a nonlegal entity. OAG 75-651 .

Under the expressed provisions of this section, as amended in 1976, only the lump sum of salaries paid to teachers and other employees of the school district must be shown in the published financial statement. OAG 76-393 ; 76-415.

A county cannot comply with the requirements of this section by publishing a condensed financial statement under general headings and filing a detailed statement with the county court clerk. OAG 77-142 .

Under this section a qualified newspaper may, at its expense, publish as a news item the individual salaries of school employees. OAG 77-418 .

Where a court clerk is causing the publication of financial statements in a newspaper other than one which has the largest bona fide circulation in the county, a mandamus action would be an appropriate remedy to compel compliance with this section. OAG 77-550 .

Where a city is operating its gas and water system as a separate agency of the city government, the utility system must publish a detailed financial statement as required under this section even though the utility system is not operated out of the general fund. OAG 78-51 .

The publication of a letter of transmittal under KRS 43.090 or even an auditor’s report of audit in no way serves to cancel out the county treasurer’s duty to publish his or her report under this section. OAG 79-103 .

The public officer required to prepare and publish the financial statement for a fire protection district involved in this section cannot escape his statutory duty by publishing a copy of the certified public accountant’s audit. OAG 80-240 .

The supervision of local health departments by the department for human resources does not relieve the public officer of the local health department from his duty under this section to collect, receive, have custody, control or disbursement of funds, and the local health department is required to publish under this section as to the funds it receives and disburses unless it falls within an exception to this section. OAG 80-325 .

Where a local health department is co-extensive with a public health taxing district with all its income and disbursements recorded in the district’s financial records, the recently enacted KRS 65.070(1)(c) demonstrates an intention to substitute publishing information as to the availability of financial records for publishing the previously-required detailed financial statement; therefore, as to these local health departments, there is to be an exception to the publishing requirements of this section, however, where the local health department is not co-extensive with a public health taxing district with the same financial records, it will have to publish in accordance with this section. OAG 80-325 .

Since a city-county air board is entrusted with the control and custody of public funds, the officers of the air board must comply with the provisions of this section concerning the preparation and publication of an annual financial statement. OAG 80-577 .

A fire protection district now is required to publish an annual financial statement consistent with the requirements of KRS 65.070(1)(c) in place of the annual financial statement formerly required by this section. OAG 80-627 .

The fact that the 1980 legislature placed new requirements on cities with respect to accounting records and financial reports, directed each city to operate under an annual budget ordinance and repealed two preexisting statutes which had required the publishing of a summary of an annual audit, resulted in making the law such that each city must publish a summary of the audit report, KRS 91A.040 , and also fully follow the publication requirements for a financial statement set out in this section. OAG 81-37 .

The county attorneys of Kentucky are not required to publish a financial statement pursuant to this section since the auditing of the county attorney’s books pursuant to KRS 43.070 and KRS 64.810 is ample to disclose the specifics of his official operation. OAG 81-168 .

The annual financial statement of a county cannot be carried by a newspaper other than the one having the greatest bona fide circulation since KRS 424.120 explicitly requires the ad to be carried by the newspaper having the greatest bona fide circulation. OAG 82-117 .

Under the express terms of this section, the officer responsible for the county financial statement must, within 60 days after the close of the fiscal year, cause the statement to be published in full in a newspaper qualified under KRS 424.120 to publish ads for the county (largest bona fide circulation, etc.), regardless of the financial burden imposed on the county by the cost of placing the full statement in the newspaper. OAG 82-117 .

Acts 1982, ch. 430, which amends several statutes relating to publication requirements of cities, including KRS 91A.040 and this section, is basically an amendment of the municipal publication requirements and does not affect the city budget process, financial matters in cities or matters relating to the administration of city finances. It gives a city a choice as to which of two devices relating to finances and expenditures must be published annually rather than requiring that they both be published and affects what a city publishes after the completion of the fiscal year, but does not affect the activities of a city during the fiscal year; it does not impair any vested rights. OAG 82-353 .

As to its publication provisions for municipal governments, Acts 1982, ch. 430, effective July 15, 1982, is applicable to those municipal governments for the fiscal year July 1, 1981 to June 30, 1982. OAG 82-353 .

A city of the sixth class must continue to prepare an audit and publish it under the terms of subsections (7), (8) or (9) of KRS 91A.040 unless the city qualifies under the provisions of KRS 91A.040 , in which case it may in lieu of preparing an audit publish a financial statement pursuant to this section. OAG 82-384 .

A county hospital must make a paid publication of its financial statement showing the aggregate sums received according to category and the aggregate sums paid out according to each payee. A newspaper may publish other information from the records of the hospital as news items without cost to the hospital. OAG 82-608 .

It is necessary, in order to comply with this section, that a school district include in its financial statement receipts and disbursements for a cafeteria account. OAG 82-622 .

A hospital district organized and functioning pursuant to the terms and provisions of KRS 216.310 to 216.360 is required to publish an annual statement consistent with the requirements of KRS 65.070(1)(c) in lieu of the annual financial statement required by this section. OAG 82-631 .

This section conflicts with KRS 91A.040 and 91A.041 (repealed) in that it requires the publication of the financial statement within 60 days after the close of the fiscal year; since KRS 91A.040 (8) is more specific in nature, in that it applies solely to cities, and since it is new legislation, it would prevail in its time requirement which is tied in with the 270-day time leeway permitted in KRS 91A.040(1) with regard to the preparation of the city’s audit. Of course, all other requirements of KRS Chapter 424 must be complied with in respect to such publication. OAG 83-56 .

As a political subdivision, a city-county parks and recreation board created pursuant to KRS 97.035 would be subject to the requirements of this section relative to the publication of an annual financial statement. OAG 83-327 .

In reading all of subsection (1) of this section together, under the doctrine of in pari materia, it appears that this section does not apply to a district health department; this section emphasizes that those units of government which extract rates, charges, assessments or taxes from the public are brought under the statute. Thus, it would not apply to a district health department which received its funding from state, federal, county, and public health taxing district sources, and imposed no taxes or charges upon the public. OAG 84-335 .

KRS 65.070 , relating to publication of financial statements, has no application to a district health department; however, the financial statement provisions of this section do apply to a district health department. OAG 85-45 , modifying OAG 84-335 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Morris, Municipal Law, 70 Ky. L.J. 287 (1981-82).

424.230. Optional monthly or quarterly statements.

Any officer who is subject to the provisions of KRS 424.220 may elect to prepare and publish monthly or quarterly statements, in lieu of the annual statements required by KRS 424.220 . All of the provisions of KRS 424.220 shall be applicable to such a monthly or quarterly statement except that (1) the statement shall cover only the preceding month or quarter, as the case may be, and (2) the publication shall be made within thirty (30) days after the end of the month or quarter, as the case may be. Any officer who has elected to proceed under this section shall not be exempted from the requirements of KRS 424.220 for any fiscal year unless he has caused to be prepared and published, in accordance with this section, a proper statement for each month or quarter of the fiscal year.

History. Enact. Acts 1958, ch. 42, § 13.

424.240. County or city budget.

Immediately following the adoption of an annual budget by any county or city other than one of the first class or a consolidated local government, the clerk shall cause a summary of the budget or the text of the budget ordinance to be advertised for the county, consolidated local government, or city by publication in a newspaper.

History. Enact. Acts 1958, ch. 42, § 14; 1960, ch. 168, § 1; 1984, ch. 201, § 2, effective July 13, 1984; 2002, ch. 346, § 233, effective July 15, 2002.

NOTES TO DECISIONS

1.Standing to Sue.

Allegation in plaintiff’s complaint that city board of trustees had not adopted and published budget pursuant to this section had a statutory remedy provided by the legislature which conferred standing on citizens of the governmental unit to bring actions to compel adherence to the law. Fish v. Elliott, 554 S.W.2d 94, 1977 Ky. App. LEXIS 756 (Ky. Ct. App. 1977).

Opinions of Attorney General.

The statute as it relates to the publication of city budgets would not be applicable to municipal housing commissions established under KRS Chapter 80. OAG 60-486 .

A fifth-class city must, by ordinance, levy an annual tax rate, prepare an annual budget and publish both the budget or summary thereof together with the rate in the local newspaper. OAG 70-630 .

A city of the third class is required to prepare and approve an annual budget governing expenditures during the fiscal year by implication from this section. OAG 74-61 .

Although there is no requirement that a city of the fifth class prepare a separate budget for the police department, the city is required to formulate and publish a general budget which is a public record open to inspection by any interested person. OAG 76-287 .

A city budget is a public record under KRS 61.870 and is thus open to public inspection; current budgets are required to be published pursuant to this section. Previous budgets and current budgets are both open to public inspection, as previous budgets have lost any “preliminary” quality by being closed and current budgets are “working” budgets indicative of final action; for the same reasons, the budget ordinances of the city would also be open to inspection. OAG 84-217 .

424.250. School district budget.

At the same time that copies of the budget of a school district are filed with the clerk of the tax levying authority for the district, as provided in KRS 160.470 , the board of education of the district shall cause the budget to be advertised for the district by publishing a copy of the budget in a newspaper.

History. Enact. Acts 1958, ch. 42, § 15.

Opinions of Attorney General.

While the amending of KRS 160.470 and the making of each school district their own tax levying authority repeals that part of this section as to filing the budget with a clerk, the other part of the statute calling for the budget to be published in a newspaper is capable of being observed. OAG 82-603 .

Research References and Practice Aids

Cross-References.

School districts, KRS ch. 160.

424.260. Bids for materials, supplies, equipment, or services — Exceptions.

  1. Except where a statute specifically fixes a larger sum as the minimum for a requirement of advertisement for bids, no city, county, or district, or board or commission of a city or county, or sheriff or county clerk, may make a contract, lease, or other agreement for materials, supplies except perishable meat, fish, and vegetables, equipment, or for contractual services other than professional, involving an expenditure of more than thirty thousand dollars ($30,000) without first making newspaper advertisement for bids. This subsection shall not apply to the transfer of property between governmental agencies as authorized in KRS 82.083(4)(a).
  2. If the fiscal court requires that the sheriff or county clerk advertise for bids on expenditures of less than thirty thousand dollars ($30,000), the fiscal court requirement shall prevail.
    1. Nothing in this statute shall limit or restrict the ability of a local school district to acquire supplies and equipment outside of the bidding procedure if those supplies and equipment meet the specifications of the contracts awarded by the Office of Material and Procurement Services in the Office of the Controller within the Finance and Administration Cabinet or a federal, local, or cooperative agency and are available for purchase elsewhere at a lower price. A board of education may purchase those supplies and equipment without advertising for bids if, prior to making the purchases, the board of education obtains certification from the district’s finance or purchasing officer that the items to be purchased meet the standards and specifications fixed by state price contract, federal (GSA) price contract, or the bid of another school district whose bid specifications allow other districts to utilize their bids, and that the sales price is lower than that established by the various price contract agreements or available through the bid of another school district whose bid specifications would allow the district to utilize their bid. (3) (a) Nothing in this statute shall limit or restrict the ability of a local school district to acquire supplies and equipment outside of the bidding procedure if those supplies and equipment meet the specifications of the contracts awarded by the Office of Material and Procurement Services in the Office of the Controller within the Finance and Administration Cabinet or a federal, local, or cooperative agency and are available for purchase elsewhere at a lower price. A board of education may purchase those supplies and equipment without advertising for bids if, prior to making the purchases, the board of education obtains certification from the district’s finance or purchasing officer that the items to be purchased meet the standards and specifications fixed by state price contract, federal (GSA) price contract, or the bid of another school district whose bid specifications allow other districts to utilize their bids, and that the sales price is lower than that established by the various price contract agreements or available through the bid of another school district whose bid specifications would allow the district to utilize their bid.
    2. The procedures set forth in paragraph (a) of this subsection shall not be available to the district for any specific item once the bidding procedure has been initiated by an invitation to bid and a publication of specifications for that specific item has been published. In the event that all bids are rejected, the district may again avail itself of the provisions of paragraph (a) of this subsection.
  3. This requirement shall not apply in an emergency if the chief executive officer of the city, county, or district has duly certified that an emergency exists, and has filed a copy of the certificate with the chief financial officer of the city, county, or district, or if the sheriff or the county clerk has certified that an emergency exists, and has filed a copy of the certificate with the clerk of the court where his necessary office expenses are fixed pursuant to KRS 64.345 or 64.530 , or if the superintendent of the board of education has duly certified that an emergency exists, and has filed a copy of the certificate with the chief state school officer.
  4. The provisions of subsection (1) of this section shall not apply for the purchase of wholesale electric power for resale to the ultimate customers of a municipal utility organized under KRS 96.550 to 96.900 .

History. Enact. Acts 1958, ch. 42, § 16; 1960, ch. 168, § 1; 1972, ch. 147, § 1; 1974, ch. 97, § 1; 1978, ch. 197, § 12, effective June 17, 1978; 1982, ch. 282, § 4, effective April 2, 1982; 1990, ch. 95, § 1, effective July 13, 1990; 1992, ch. 178, § 1, effective July 14, 1992; 1996, ch. 89, § 5, effective July 15, 1996; 2000, ch. 5, § 11, effective July 14, 2000; 2000, ch. 225, § 3, effective July 14, 2000; 2000, ch. 510, § 3, effective July 14, 2000; 2005, ch. 85, § 696, effective June 20, 2005; 2016 ch. 22, § 5, effective July 15, 2016; 2019 ch. 79, § 4, effective June 27, 2019.

NOTES TO DECISIONS

1.Construction.

Since the provisions of former law regarding the maximum amounts that could be expended by school boards for buildings, improvements and materials before being required to advertise for competitive bids were less than the amount provided for in this section as enacted in 1958, such former law was to that extent repealed and superseded by this section. Board of Education v. Hall, 353 S.W.2d 194, 1962 Ky. LEXIS 8 ( Ky. 1962 ).

This section contains no language that the lowest and best bidder, or for that matter any bidder, must be awarded the contract and where the record was devoid of any charge that defendants, county fiscal court and hospital acted fraudulently, collusively, arbitrarily, capriciously or in abuse of discretion in refusing the lowest bid, action against them was properly dismissed. Handy v. Warren County Fiscal Court, 570 S.W.2d 663, 1978 Ky. App. LEXIS 582 (Ky. Ct. App. 1978).

2.Purpose.

The requirement for advertisement by publication and competitive bidding satisfies the public goals of (a) an offering to the public, (b) an opportunity for competition and (c) a basis for exact comparison of bids, notwithstanding that this section makes no provision for the award of contracts to the lowest and best bidder. Handy v. Warren County Fiscal Court, 570 S.W.2d 663, 1978 Ky. App. LEXIS 582 (Ky. Ct. App. 1978).

3.Purchases.
4.—Amount.

Since items purchased fell within several categories, no one of which involved more than $500, advertising for competitive bidding was not required. Board of Education v. Hall, 353 S.W.2d 194, 1962 Ky. LEXIS 8 ( Ky. 1962 ).

5.Contractual Services.

City need not solicit bids before contracting for banking and insurance services. McCloud v. Cadiz, 548 S.W.2d 158, 1977 Ky. App. LEXIS 646 (Ky. Ct. App. 1977).

The contractual services for which this section requires the solicitation of bids are those involving personal services of a manual or mechanical nature. McCloud v. Cadiz, 548 S.W.2d 158, 1977 Ky. App. LEXIS 646 (Ky. Ct. App. 1977).

6.Standing.

Allegation in plaintiff’s complaint that city board of trustees had not advertised for bids to obtain facilities for the city hall pursuant to this section had a statutory remedy provided by the Legislature which conferred standing on citizens of the governmental unit to bring actions to compel adherence to the law. Fish v. Elliott, 554 S.W.2d 94, 1977 Ky. App. LEXIS 756 (Ky. Ct. App. 1977).

7.Applicability.

Circuit court properly concluded that a contract for fire protection services between a fire district and a fire department did not require advertisements for public bidding under Ky. Rev. Stat. Ann. § 424.260(1) because fighting fires required professional skill. Se. Bullitt Fire Prot. Dist. v. Se. Bullitt Fire & Rescue Dep't, 537 S.W.3d 828, 2017 Ky. App. LEXIS 397 (Ky. Ct. App. 2017).

Cited in:

Fosson v. Fiscal Court of Boyd County, 369 S.W.2d 108, 1963 Ky. LEXIS 58 ( Ky. 1963 ); Massey v. Franklin, 384 S.W.2d 505, 1964 Ky. LEXIS 105 ( Ky. 1964 ); McGovney & McKee, Inc. v. Berea, 448 F. Supp. 1049, 1978 U.S. Dist. LEXIS 18932 (E.D. Ky. 1978 ).

Opinions of Attorney General.

The statute would not be applicable to municipal housing commissions established under KRS Chapter 80. OAG 60-486 .

The sales tax and other costs such as transportation and professional fees should be included by the city in determining the total cost of a contract and whether or not such costs would require advertising for bids pursuant to this section. OAG 60-518 .

Where the sheriff’s office was being moved but the safe could not be moved, if the chief executive officer of the county certified that an emergency existed and filed a copy with the chief financial officer of the county, a new safe could be purchased without advertising for bids. OAG 60-822 .

If a board of education buys oil and gasoline for school buses in bulk and the purchase price exceeds $1,000, the purchasing of these supplies should be done through bid advertising. OAG 60-1217 .

A board of education is not required to advertise for bids in the selection of school bus drivers. OAG 61-634 .

The employment of school bus drivers is not within the purview of either KRS 162.070 or this section. OAG 61-634 .

Change orders as provided for in a contract for the construction of public school buildings are proper when they do not substantially alter the nature of the contract or may be regarded as matters incidental to or which relate to an integral part of the original contract and specifications, but if they are so great as to constitute a new construction contract or to deal with an unrelated matter, this proposition would not apply. OAG 62-845 .

The question of whether competitive bids are required for a change order depends more on the nature of the change order than the amount of money involved. OAG 62-845 .

If records of the school board indicate that in prior years the annual cost of paint totals $1,000 or more, the board should advertise for bids on all paint purchased, unless the board is certain that the amount will not exceed $1,000. OAG 62-901 .

Where the school board ordered several pieces of related school equipment and furniture from a single vendor and the total amount exceeded $1,000, bids should have been taken. OAG 62-901 .

Where the school board is going to make two purchases of the same type of supplies within a span of three or four months and the total amount would exceed $1,000, the amount of supplies needed should be estimated and bids taken. OAG 62-901 .

A city is not legally required to advertise for bids in connection with the execution of insurance contracts. OAG 62-1082 .

The employment of a fiscal agent by a board of education would constitute a contractual relationship for professional services and advertisement for professional services and advertisement for bids for this service is not required. OAG 63-938 .

The statute would apply to purchases or contracts for services of a county hospital commission. OAG 63-1098 .

The basic issue in each instance of severability is whether the governmental unit acted in good faith or whether the purchases were split up for the purpose of evading the bidding statute. OAG 64-510 .

Even though partially funded with money from the federal government, a county building commission would be required to follow the bidding provisions of this section. OAG 65-746 .

If the individual students exercise their own initiative in the purchase of class rings, senior portraits and senior invitations and the school has no control and does not use its accounting procedures in the purchase, bids do not have to be taken and the individual choices must be respected. OAG 66-228 .

An ordinance leasing certain city property to an individual was not illegal for failure to execute the lease on a bid basis. OAG 66-728 .

A district school board is not required to advertise for bids for the satisfaction of its insurance requirements. OAG 67-66 .

If after readvertisement no firm bids are received and there is every indication that none can be obtained, the council would be authorized to privately negotiate for the best contract obtainable for the performance of required work. OAG 67-119 .

The city must make every effort to let those contracts coming within the purview of this section on a bid basis even though the public authorities believe in good faith and as a result of inquiries that no firm bids will be received, or that no one other than the one to whom a contract has previously been let would be willing to undertake the job. OAG 67-119 .

A school board member is prohibited from contracting with the board of which he is a member, despite the fact that the contract is let pursuant to sealed bids. OAG 67-212 .

The local share of the funds for an area public library, or a portion thereof, cannot be segregated from the other government funds going into the project to be supervised by the department of libraries, because it would be impossible for the department to insure full compliance with bidding procedures. OAG 69-65 .

Purchases of athletic equipment of over $1,000 by a district school board would have to be made by the bidding procedure even though the purchase money was derived from admissions to athletic exhibitions. OAG 69-327 .

Emergencies may be excluded under this section and where the purchases are actually severable on a bona fide basis, the statute would not be offended. OAG 69-515 .

Where a school board had no gasoline storage facilities, it should have conducted competitive bidding for retail gasoline rates. OAG 70-74 .

Where coal purchases exceeding $1,000 were made at various times by a school board without competitive bidding, the contracts were void, the public funds paid out pursuant to such a transaction were recoverable, and the acceptance of benefits would not permit recovery on a quantum meruit basis. OAG 70-74 .

Where the fiscal court advertised a request for bids on the operation and lease of the county rest home and then accepted a bid of 18 percent of gross receipts, the bid was valid as the leasing of the rest home did not require the application of this section. OAG 70-96 .

This section is applicable to public utility franchises sold pursuant to KRS 96.010 . OAG 70-136 .

A contract between the fiscal court and a private individual for property and equipment for a sanitary landfill operation where the fiscal court guaranteed a monthly fee to the operator from which additional fees for private dumping would be deducted would come within the purview of this section requiring that advertisement be made and bids be received. OAG 70-191 .

Even though a sanitation or health emergency is deemed to exist, before a franchise for a dumping facility can be granted, it must be advertised and bids received. OAG 70-191 .

The fiscal court could legally award a franchise covering a specifically designated portion of the county for the dumping of garbage at a landfill site pursuant to Const., § 164, after advertisement was made and bids received for a site. OAG 70-191 .

A lease between a local bank and the county under which the county would lease a dump truck from the bank on a one-year lease, renewable until the truck was paid for, at which time the title would be transferred to the county would be valid if the annual rental did not cause the county to exceed its debt limitation, if the county was only obligated for a one-year lease and if the lease-purchase agreement was let out on competitive bids with the bank the assignee of the successful bidder. OAG 70-233 .

Where a district board of education desires to pay all or any part of the premiums on group policies for district employees, the advertising and competitive bid procedure of this section should be followed where the amount to be paid by the board is in excess of $1,000. OAG 70-687 .

The electric plant board of a city organized pursuant to the little TVA act would be considered a municipal board or commission referred to in this section and would be required to comply with the bidding requirements of this section. OAG 70-798 .

So long as the specifications are reasonable, clear, and identical to all bidders, and if they estimate as definitely as practicable the specific work and work performance level required and the time period required, the specifications would be adequate for bidding for the hiring of special heavy equipment and operators on an hourly basis. OAG 71-27 .

Where road repair work was under the constant supervision of the county road supervisor and under adequate time checks, an award of the hiring of special heavy equipment and operators on an hourly rate basis, after bids were let, would be adequate. OAG 71-27 .

It is necessary to take competitive bids in accordance with this section for the purchase of office supplies for a county attorney’s office when they are purchased out of the excess fee fund. OAG 71-171 .

The fiscal court could award a contract for certain items of hospital equipment and furnishings for a new hospital to the lowest bidder after it had made clarifications in the specifications, since the basic pricing device was not altered and because the cost change from manual beds to electric beds did not produce a substantial change in the specifications. OAG 72-162 .

Under this section professional services are exempt from competitive bidding; therefore, professional engineers need not engage in competitive bidding for professional services. OAG 72-228 .

Under this section a city must let contracts for street improvements on a bid basis if the anticipated expense would exceed the statutory amount, even though there may be only one company within the city or county that has the necessary equipment. OAG 72-231 .

While there are no statutes prohibiting the “turnkey” method of construction of a city-county hospital, the bidding provisions of this section must nevertheless be complied with. OAG 72-233 .

The advertising requirements of this section would not apply to a contract by a city for the purchase of real estate for use as a city building. OAG 72-609 .

The competitive bidding procedure for insurance contracts set forth in this section should be utilized where the amount to be expended is more than $2,500, except in those situations where the premium rates and benefits are fixed by statute or ordinance, so as to eliminate any possible variation in rates, group life, disability and medical coverage insurance contracts, and other types of insurance contracts in which the premium rates and benefits may be competitive and vary from company to company, are not excepted from the bidding requirements as contracts for professional services. OAG 73-367 .

Where a county’s needs for the application of bituminous materials in repairing its roads exceeded $2,500, the requirement of this section that bids be taken after advertisement could not be circumvented by splitting the total amount into several “rental” payments to the contractor. OAG 73-415 .

This section would not apply to a contract by the fiscal court to purchase a private law library and office equipment for the total sum of $2,500 and therefore it would not be required to advertise for bids before executing such contract. OAG 73-433 .

If the cost of printing general election ballots exceeds the statutory amount referred to in this section, the contract for printing such ballots must be let on a bid basis as the county clerk acts on behalf of the county or other governmental unit. OAG 73-615 .

Where without observing this section the local school board was presented with claims for $281,207 for work on the construction of a new school building which was performed on the basis of an oral agreement between the contractor and the then school superintendent, none of the county’s revenue-sharing money can be legally spent in replacing the capital outlay fund money and school building fund money, which funds were illegally spent on a void contract, as this would be a violation of this section. OAG 73-684 .

The state board of education has enacted regulations for bidding on the purchase of school equipment and any bidding not conforming to these regulations can be reported to the superintendent of public instruction who is empowered by KRS 156.132 to make written charges against any superintendent or board member who is guilty of misconduct or unlawful acts. OAG 73-740 .

Where a school district advertised for bids and opened them at the specified time but delayed awarding a contract until some time not more than 90 days later, during which period of time a new wage rate was issued, since no changes were made in the contract price or work specifications and no justification was shown for an “emergency” authorizing waiver of the bidding statutes under this section, the wage rate to be paid by the contractor should be that in effect on the date of advertisement for bids and not the new rate that was in effect at the time bids were awarded. OAG 73-744 ; 74-8.

The purchase by a fiscal court of a county vehicle to be used by a senior citizens organization for an amount in excess of $2,500 is void unless it is let out on advertised newspaper bids stating the specifications desired. OAG 74-107 .

This section’s requirement that local boards of education solicit bids for the purchase of gasoline need not be complied with during the effective duration of the federal petroleum allocation and price regulations which mandated that each school district retain its current gasoline supplier. OAG 74-285 ; 76-600.

No pre-qualifications are necessary as to professional engineers and architects as they are exempt and should not be required to respond to bidding procedure. OAG 74-379 .

The authority to use “fast track” bidding is not prohibited by this section as long as competitive bidding is afforded. OAG 74-379 .

This section applies to urban-county government or a governmental corporation created under KRS ch. 273 which is merely the agent or instrumentality of urban county government. OAG 74-379 .

There was no need for the board of education to advertise for bids on office space as the words “lease or other agreement for materials, supplies or equipment” do not cover such space. OAG 74-404 .

A proposed contract for addition to a hospital would not be valid under this section where the construction manager, if there were no other bids or all bids were in excess of the manager’s budgeted cost, would automatically end up with the contract. OAG 74-420 .

Since certified, public accounting services are professional, a city is not required to request proposals from various firms to conduct an annual audit of the city’s books of account and record. OAG 74-698 .

Purchase of housing for a fire engine did not constitute an emergency that would, under this section, waive the necessity for use of the bidding procedure. OAG 74-778 .

The Board of Trustees of the Fire Protection District, rather than the chief of the fire department of the district under KRS 75.031 , has the authority to contract for the purchase of fire equipment and the requirements of this section must be met if the contract involves an expenditure of more than $2,500 so that the Fire Protection District may legally purchase fire equipment from manufacturers for which the full-time fire chief of the Fire Protection District sells equipment when no commission or other remuneration is received by the chief in connection with purchase by the district and assuming that the statutory bidding requirements, if applicable, are observed. OAG 74-880 .

Where hospital’s liability insurance has been cancelled the hospital if it desires to continue with liability insurance cannot accept the bid of the next lowest bidder but should let out a new contract by advertising for bids anew, pursuant to this section. OAG 75-19 .

When a school district purchases textbooks and materials under the provisions of KRS 156.400 to 156.476 , the statutory bidding procedures required by this section are not applicable. OAG 75-27 .

Where a city in advertising bids for a sanitary landfill specified a cutoff time and date for the receipt of bids and after that time a city councilman turned over to the city clerk a bid on behalf of the bidder, it was improper for the councilman to deliver the bid and the bid could not be properly accepted by the city after the specified time, since, although not spelled out therein, this section by implication requires strict compliance by a city with its advertised bidding procedures. OAG 75-97 .

Where a city in advertising bids specifies a cutoff time and date for the receipt of bids, the city clerk should time stamp all bids showing the precise time of receipt to document compliance with the advertised requirement. OAG 75-97 .

A fiscal court may, without advertising for bids, purchase from the county clerk materials and supplies not in excess of $2,500, providing this limitation in amount is not circumvented by splitting a larger purchase into “dribbles and dabs” of separate purchases. OAG 75-98 .

An arrangement whereby a political subdivision enters into a negotiated price agreement for the construction of facilities is invalid where the bidding requirements of this section were not complied with prior to the commencement of construction. OAG 75-117 .

The agent of the fiscal court, in letting a contract for construction of county hospital facilities would have to comply with the bidding requirements of this section, regardless of the statutory financing method or methods employed, since a negotiated contract would be strictly illegal and void. OAG 75-482 .

The services rendered by an auditor are professional services and therefore a board of education may employ an auditor without advertising for bids while “cleaning services” do not fall within the meaning of “professional” services and advertisement for bids involving an expenditure of more than $2,500 for cleaning services is statutorily required. OAG 75-488 .

If the cost of services in connection with the production of a school yearbook are as much as $2,500, then, in accordance with this section and Regulations 702 KAR 3:130 and 3:140, schools should advertise for bids and the expenditures must be supervised by the board of education which has the ultimate responsibility. OAG 75-618 (affirming OAG 66-51 , 66-228 and 66-417).

A contract for the printing of supplies for county elections is not required to be given to the newspaper having the largest circulation and, therefore, may be given to any other newspaper as long as it is located in the county in conformance with KRS 57.285 , but if the printing costs exceed $2,500 then the contract must be let on a bid basis. OAG 75-711 .

The bidding requirement cannot be avoided by buying a small amount each month where it is known that certain supplies will be needed over a period of several months, and in such a case, the fiscal court should estimate aggregate needs in advance. OAG 76-9 .

The fiscal court has the power to purchase all property for the county out of the county treasury including any equipment purchased for the use of the office of sheriff or for any other county constitutional office and where necessary official purchases are made out of excess fees of county constitutional officers for use of those offices, the fiscal court has the authority to require that such purchases be made by the central purchasing officer established by the fiscal court to effect county purchases after such purchases are authorized by fiscal court orders. OAG 76-390 .

Where the county court clerk caused an advertisement to be placed in a local paper stating that the fiscal court was seeking bids on gasoline, fuel oil and labor for repairing county equipment, but no mention was made of the fiscal court’s right to reject any and all bids and the fiscal court had not expressed an intent to seek bids and bid specifications were not prepared by them, but in response to the advertisement, two service stations submitted bids, one of which was accepted by the fiscal court even though they were unaware of the clerk’s advertisement, the county court clerk acted in absence of any instructions or directions from the fiscal court when he placed the advertisement, and the fiscal court, even though it initially accepted one of the bids, may, after discovering the improper act of the county court clerk and its own failure to authorize the purchase of the items bid upon, revoke the contract if one was made or reject the bids submitted. OAG 76-476 .

This section has no application to KRS 117.145 since the latter statute provides for special purchases of election supplies by the county clerk and contains no express provisions for competitive bidding. OAG 76-496 .

This section was intended to supersede any similar bidding provisions for local governmental units. OAG 76-496 .

In determining whether a contract involving backhoe work is for more than $2,500 and thus subject to the bidding requirement, a city cannot add the value of other services and materials not related to that work such as wages of city employees or materials obtained through other contracts. OAG 76-521 .

A local public school district must advertise for bids on each categorically separate food commodity it desires to purchase where the cost of procurement will exceed twenty-five hundred dollars over the period of a school year. OAG 76-556 .

A procedure followed by a board of education in awarding contracts for construction, repair and maintenance services that may develop in the future would not comply with this section which contemplates contracts where job specifications are advertised for a specific project and bids are received containing a firm total cost figure. OAG 76-661 .

A nonprofit corporation organized for the sole purpose of financing and constructing public projects on behalf of displaced residents would not be required to comply with the bidding statutes. OAG 77-74 .

Where a contract relating to the purchase of class rings by students at a county public school would in no way involve school funds, bidding would be unnecessary. OAG 77-255 .

A city which has been issued a license to construct a hydroelectric plant could invite bids which specify alternate methods of construction and equipment. OAG 77-265 .

This section does not apply to the sale of surplus property by a water district. OAG 77-399 .

In receiving bids for construction of a branch library, a public library district could not award the contracts on the basis of the base bids only and then automatically accept the alternates desired at the prices submitted by the chosen low base bidder, but instead must award the specific contracts on the basis of the sum of the base bid plus the desired alternates. OAG 77-428 .

A city may hire the necessary personnel and lease the needed equipment to install waterlines, but if the equipment to be leased involves an expenditure of more than $2,500 the city must follow the bidding requirements set forth in this section. OAG 77-458 .

Inasmuch as insurance contracts involve a “professional” service rather than a personal service of a manual or mechanical nature, a city may obtain insurance coverage without making a newspaper advertisement for bids. OAG 77-599 .

The bidding requirements of this section do not apply to insurance procured for the county, regardless of the amount. OAG 78-12 .

A sewer and water board is an agency of the city and would be required to advertise for bids pursuant to this section where the contract involved more than $5,000. OAG 78-95 .

This section requiring competitive bidding is mandatory and where applicable it must be observed in good faith by the local governmental authorities so that the legislative body responsible for letting bids cannot circumvent the statute by buying needed supplies in “dribbles and dabs.” OAG 78-121 .

Under this section, the fiscal court has discretion in applying this section during the duration of awarded bid contract; however, it cannot, in considering the purpose of the bidding statute, act arbitrarily, capriciously or unreasonably and where the fiscal court desired to continue under an existing petroleum contract, whether or not they were acting arbitrarily or capriciously in failing to relet the bids on petroleum products would be determined by the courts. OAG 78-121 .

It is illegal for a city to figure its gasoline needs for one day and thus avoid advertising for bids; rather, a city should calculate its gasoline needs for at least a one-year period and advertise for bids if the costs will exceed $5,000. OAG 78-166 .

The fact that roads are in poor condition as the result of a bad winter was not unforeseeable and was not of emergency status so as to justify the purchasing of trucks for the county road system without a letting of bids if the cost exceeds $5,000. OAG 78-280 .

Where a city offered to pay to blacktop the driveway of leased premises in exchange for such lease, if the city itself was responsible for blacktopping the driveway, making it necessary for it to obtain by contract the necessary materials and equipment to do the job, then this section would be applicable since it applies to all purchases of material and equipment by a city. OAG 78-357 .

KRS 45A.385 and this section as amended in 1978 are pari materia and both are to be given effect by construing the $2,500 limitation to be an oversight by the Legislature that it was increasing the limitation of this section to $5,000. OAG 78-357 .

The term “professional services” as used in this section refers to those services furnished by a physician, lawyer, engineer, artist, architect, etc. OAG 78-725 .

The term “professional services” could in no way include the furnishing of computer billing services contemplated by an electric plant board and, as a consequence, the board would be required to advertise for bids for this type of service in compliance with this section, assuming of course that the cost of such services will exceed $5,000. OAG 78-725 .

Under this section the fiscal court would have to observe an accepted bid for the time period agreed upon under the specifications. OAG 79-138 .

Where a fiscal court sought bids for both 12- and 18-inch steel, and got bids from one bidder of $2.00 and $3.00 respectively, and of $2.25 and $2.90 respectively from another, it would be necessary to reject both bids and ask for new and separate bids, since under the initial bids it would be impractical to determine a low bidder. OAG 79-138 .

Whether or not a fiscal court could reimburse a private citizen for money he spent for work on a public way would depend on whether the cost of the work exceeded $5,000; if it did, this section would have required a bid which did not take place, thus preventing reimbursement; but if it was less than $5,000, then it is in the discretion of the fiscal court to do so. OAG 79-138 .

Nothing prevents the delegation of authority to make purchases, up to a certain level less than $5,000, to the county judge/executive, subject to final fiscal court approval, being placed in the administrative code. OAG 79-179 .

Where a city-county office building was in dire need of a new roof and bids were twice advertised for with no one making a bid, a resolution declaring an emergency could properly be passed and noncompetitive negotiations entered into despite the fact that such work would involve an expenditure substantially more than $5,000. OAG 79-304 .

Where a county is contracting for hospital management services, the bidding statute does not apply. OAG 79-377 .

The provisions of the Model Procurement Code (KRS 45A.385 ) must govern over this section as amended since the Procurement Code is a detailed, comprehensive and specific kind of legislation as contrasted with the short, skeletal and general provisions of this section. OAG 79-429 ; 79-447.

A firm selected as construction manager for a project could also bid competitively on other phases of the construction work, since the services and work to be performed legitimately can be broken down into various parts or phases. OAG 79-501 .

A local school board may directly purchase items or equipment, for a construction project, by competitive bidding, which it would then have installed by others under separate competitive bids. OAG 79-501 .

The position of a construction manager over a construction project constitutes professional services and would therefore not be subject to competitive bidding. OAG 79-501 .

There is no express provision in KRS Chapter 273 or in this section that required a nonprofit, nonstock corporation to observe the bidding process. OAG 79-577 .

Where a county fiscal court has formally adopted the Model Procurement Code, the provisions of that code apply to the construction of a personal care home on behalf of a tenant, which will be a Kentucky nonprofit corporation, the funding of which construction will be effected by a revenue bond issue of fiscal court pursuant to KRS 103.200 ; however, where the fiscal court has taken no formal action to come under the Model Procurement Code, the code does not apply, and this section, requiring bidding on the construction contract, would apply. OAG 80-297 .

If a county has not adopted the Model Procurement Code, the procurement of the services of a public accountant or certified public accountant, in order to audit the county’s funds, would not require formal bidding procedure. OAG 80-624 .

A county metropolitan sewer district may, whether operating under this section, the bidding statute, or KRS 45A.345 , the model procurement code, adopt a “Buy American” clause, which requires a contractor or supplier to furnish only goods manufactured in America, as a standard procurement policy, included in all purchasing contracts and bid specifications. OAG 81-34 .

The fiscal court of a county may lease a portion of the tobacco base owned by the county to individuals, since the power of the court under KRS 67.080 to sell real property includes the power to lease, and the lease of county property does not come under the competitive bidding requirements of this section and the Model Procurement Code, KRS Chapter 45A, since the bidding principle applies only to governmental acquisitions, not situations where the government is the lessor; however, the lease must contain the precise consideration given, since the fiscal court must make full public disclosure of its transactions. OAG 81-107 .

Where a fiscal court has specifically adopted the Kentucky Model Procurement Code, pursuant to KRS 45A.350 (repealed), it must, under subdivision (23) of KRS 45A.345 , purchase insurance under a competitive bidding system, even though this section excepts professional services such as insurance from competitive bidding. OAG 81-109 .

A county fiscal court, in a county which has not adopted the Kentucky Model Procurement Code under KRS 45A.350 (repealed), may participate in a self-insuring workers’ compensation trust in connection with a workers’ compensation benefits program for hospital workers without letting out the insurance contracts under a competitive bidding procedure, since failure to adopt the procurement code leaves the fiscal court free under this section to let the contract without bidding. OAG 81-117 .

Assuming that a county fiscal court has not adopted KRS 45A.345 to 45A.460 of the Kentucky Model Procurement Code, then this section applies to the purchase of its gasoline, petroleum, and other supplies used by the county road department. OAG 82-125 .

A statutory requirement of advertisement for bids is “jurisdictional,” and a fiscal court is without power to enter into a contract without such advertisement, where the purchase requires bidding. Further, a party deals with a public agency at its peril if it contracts with an agency and fails to inquire into the power of the agency to execute such contract. OAG 82-125 .

Number of months’ supply of any needed commodity which must be considered for bidding purposes is, because of its nature, a matter that must be left to the sound administrative discretion of the fiscal court. OAG 82-125 .

The matter of letting out for bids the gasoline and oil needed for the county road department is left to the good business judgment of the fiscal court in terms of the period of consumption, price fluctuations, availability of the commodity for a definite period, etc. However, a fiscal court should not deliberately buy the needed commodities in “dribbles and dabs” merely to circumvent advertised bidding. OAG 82-125 .

The three important benefits of the bidding process are: (a) an offering to the public, (b) an opportunity for competition and (c) a basis for an exact comparison of bids. OAG 82-125 .

There is no conflict between this section and the model Procurement Code, KRS Chapter 45A, concerning the necessity of school boards taking competitive bids for general liability insurance since local school districts, as local public agencies, have a choice whether to operate with respect to their procurement needs under either the local Model Procurement Code or this section. OAG 82-170 .

This section does not require general liability insurance for school districts to be competitively bid. OAG 82-170 .

The emergency clause of Acts 1982, ch. 282, which amended this section among others, related solely to § 3 of the act which amended KRS 45A.335 to exclude members of state boards and commissions from the term “officer or employee,” as used in the conflict of interest statute, KRS 45A.340(5); it not only did not relate to the other sections of the bill, which were separable, but it gave no reason to justify that an emergency existed with respect to these sections. In view of the fact that the Ky. Const., § 55 requires an act to express in plain language what the emergency is in order for it to be effective only § 3 became effective on April 2, 1982, upon the passage of the act and approval of the governor, and the remaining sections of the act became effective as ordinary legislation on July 15, 1982. OAG 82-308 .

A fiscal court, governed by this section (that is, any fiscal court not adopting KRS 45A.345 to 45A.460 ), may effect purchases up to $7,500 without formal bidding procedure. OAG 82-324 .

Any fiscal court adopting KRS 45A.345 to 45A.460 may, under KRS 45A.385 , effect purchases not exceeding $5,000 without formal bidding procedures, while those fiscal courts, under current law, which have not adopted such sections, are governed by this section. OAG 82-324 .

Although site work can be, and is usually interpreted to be, a part of a project involving school building construction or remodeling, site work unrelated to school building construction does not come within the scope of KRS 162.070 . Thus, where a school district wished to correct a drainage problem at one of its schools, this section and the $7,500 “small purchases” ceiling was applicable to the contract for drainage site work. OAG 82-407 .

To the extent that KRS 162.070 and this section are in conflict, the provisions and therefore the $7,500 amount found in this section, as amended in 1982, must be deemed to prevail over the lower $5,000 amount remaining in KRS 162.070 . OAG 82-407 .

Under this section, a cafeteria plan of insurance coverage for school teachers need not be bid; under the Model Procurement Code if a contract is for group life insurance, group health and accident insurance, group professional liability insurance, workers’ compensation insurance, and unemployment insurance, the contract may be noncompetitively negotiated. OAG 83-151 .

This section has no application to a county sheriff. OAG 83-249 .

A fiscal court resolution requiring that tiles and tires be purchased from the cheapest places in the county is in restrictive conflict with this section and KRS 45A.365(5) and is invalid. OAG 83-258 .

If the reconstructing or paving of separate county road segments could involve unified specifications and work performance of such nature that bids on the total number of projects as a total package could be obtained, the total work should be let under advertisement for bids, pursuant to this section or KRS Chapter 45A, whichever is applicable to the county; however, if the fiscal court determines upon investigation that lump sum bids upon the total projects cannot be obtained from the road construction trade, then the various road segments should be treated as legally and factually separate and bidding would be necessary for any of the projects if they exceed for a single project the sum of $5,000 (if the Model Procurement Code applies in the county) or exceeds $7,500 (if this section applies in the county). OAG 83-316 .

No county fee officer can engage in a bidding contract of purchase of supplies or equipment, i.e., binding on the county where the money for the purchase is to come directly out of the county treasury; the fiscal court is the authority in contracting for county supplies or equipment, payable out of the county treasury. OAG 83-448 .

Should a fee officer have to purchase items of equipment or personal property that are not consumable but will have a reasonable life span, such as motor vehicles, the title would be taken in the name of the county and the purchases would be subject to the county’s handling of the purchases and applicable provisions relating to bidding law under this section or KRS Chapter 45A (where the fiscal court has adopted the provisions of KRS 45A.345 through 45A.460 ). Where the county clerk or sheriff has adopted KRS 45A.345 through 45A.460 , such officer could handle the purchase under the applicable bidding law in KRS Chapter 45A, but only with the approval of the fiscal court; and the title to the nonconsumable property or property of any reasonable life span would be in the name of the county. OAG 83-448 .

KRS 42.355(4) (now subsection (2)), in mentioning the bidding law of this chapter, specifically adopts this section to the extent that this section requires formal bidding. OAG 84-57 .

A unit of government, in connection with the demands of a bidding statute, cannot divide the work and let it under several contracts so as to circumvent the bidding requirement, thus where the transactions are not legally and factually severable, they cannot be manipulated to circumvent the declared bidding policy of this section. OAG 84-57 .

Even though a riverport authority is created jointly by a city and county, the created authority is still a body politic and corporate, it is still a special district and, thus, the district, i.e., the riverport authority, is subject to the bidding principle under this section, or the Model Procurement Code if adopted by the authority. OAG 84-196 .

The bidding statute, this section, applies to a riverport authority created pursuant to KRS 65.510 et seq., unless the authority has specifically adopted the Model Procurement Code (KRS 45A.345 to 45A.460 ), in which latter case the Model Procurement Code, with its bidding requirements, applies to the riverport authority. OAG 84-196 .

A city’s expenditure of $10,000 for the services of a professional engineer to survey and engineer a sewer line installation project falls within the category of professional services exempt from bidding under the terms of this section. OAG 84-274 .

Where a riverport authority, created pursuant to KRS 65.510 et seq., has chosen to not adopt provisions of the Model Procurement Code under KRS 45A.343 , such riverport authority automatically comes under the mandatory terms of the bidding statute, this section. OAG 84-297 (modifying OAG 80-71 ).

If reasonably detailed specifications describing the scope of a project are first prepared, such that competing potential bidders can know with particularity the product for which a bid might be tendered, and bids are solicited in relation to those specifications in conformity with KRS 424.130 , and 424.140 , the design/build approach to construction procurement might be utilized by a county. OAG 92-143 .

Where the construction inspector hired by the board of education is merely inspecting the building constructed by the general contractor and reporting back to the board, and the contract specifically releases the construction inspector from any responsibility for the actual construction of the school, these activities did not constitute professional services. The construction inspector lacked the necessary decision-making responsibility. Since the construction inspector was not considered to be supplying professional services, he was not exempt from the bidding requirements of this section. OAG 92-144 .

Where self-insured groups of Kentucky Association of Counties contracted with third party administrators to provide professional services involving the use of training, discretion, and judgment in the field of insurance, such professional services contracts may be entered into without any type of open bid. OAG 94-1 .

Where bid invitation contained no indication of either the quantity of materials to be purchased nor the projects for which the materials would be used, the bid invitation did not grant reasonable notice of county’s intentions and did not comply with the statute. OAG 94-20 .

Documents tendered as part of competitive sealed bidding become open public records at the time the bids are opened, even if the bids are rejected. Public disclosure of bid documents associated with a competitive sealed bid cannot be delayed until the contracting public agency determined whether to move to competitive negotiation, and if a determination is made to proceed into competitive negotiation, the original bid documents cannot be considered part of the negotiation process and remain closed until a contract is awarded or negotiations are cancelled. OAG 05-ORD-001.

A local public agency that has not adopted the Model Procurement Code is not required to follow competitive bidding procedures for insurance, and may contract with an insurance broker to solicit and receive bids for insurance, although competitive bidding remains preferred. A local public agency that has adopted the Model Procurement Code must follow all applicable provisions in seeking contracts with insurance brokers. OAG 13-006 .

Research References and Practice Aids

Cross-References.

Model Procurement Code, KRS 45A.005 to 45A.990 .

424.270. Local administrative regulations.

No general regulation of uniform application throughout the publication area promulgated by any officer, board or commission of a city, county, or district, which is intended to impose liabilities or restrictions upon the public shall be valid unless and until it, or a notice of such promulgation, together with a statement where the original regulation may be examined by the public, has been advertised by newspaper publication.

History. Enact. Acts 1958, ch. 42, § 17; 1960, ch. 168, § 1.

NOTES TO DECISIONS

1.Application.

This section deals with the regulations of local administrative agencies and not with municipal legislative enactments of the dignity of an ordinance. Miller v. Louisville, 321 S.W.2d 237, 1959 Ky. LEXIS 269 ( Ky. 1959 ).

Opinions of Attorney General.

This chapter would not be applicable to municipal housing commissions established under KRS Chapter 80. OAG 60-486 .

Subdivision regulations adopted by the planning commission must be published in full and as a consequence cannot be published by reference or by abstract. OAG 67-466 .

Generally, the ordinances of a fifth-class city must be published in full in a newspaper meeting the qualifications set out in KRS ch. 424, however, a zoning ordinance adopted by a fifth class city need not be published in full in the newspaper, since it is governed by the exception to the publication requirement set forth in KRS 100.207 . OAG 75-141 .

This section deals solely with the regulations of local administrative agencies and has no application with respect to the municipal legislative enactment and publication of ordinances. OAG 77-385 .

424.280. Due date of ad valorem taxes.

Every officer whose duty it is to collect any ad valorem tax for the state or for any political subdivision of the state shall cause notice of the due date of the tax to be advertised by newspaper publication, and shall not be given a quietus for the taxes collected unless he submits proof of such publication. Publication of the ordinance passed by a city adopting the rate of the ad valorem tax levy shall be deemed to satisfy the requirements of this section if the due date of the tax is published as a component of the ordinance levying the tax.

History. Enact. Acts 1958, ch. 42, § 18; 2016 ch. 22, § 6, effective July 15, 2016.

424.290. Publication of ballots and supplementary material.

  1. Not less than three (3) days before any primary or regular election the county clerk shall cause to be published in a newspaper a copy of the ballots or supplementary material on which appear the names of candidates or issues to be voted upon. Where the lists of candidates or issues to be voted upon differ for various precincts within the county, the county clerk shall cause to be published only one (1) set of data with appropriate notations showing the differences in the various precincts. If supplemental paper ballots have been approved as provided in KRS 118.215 , the supplemental paper ballot shall be published at the same time as other material required to be published by this subsection. The cost of publication shall be paid by the county, except that the cost of publishing any voting data required to be published by this subsection that is limited to a city election or a district election other than a school district election shall be paid by the city or the district as the case may be.
  2. “Copy,” as used in subsection (1) of this section, means a summary of candidates and issues to be voted upon showing all the pertinent information that will appear, upon which the voters will cast their votes at a particular polling place.

History. Enact. Acts 1958, ch. 42, § 19; 1960, ch. 168, § 1; 1962, ch. 213, § 1; 1972, ch. 188, § 67, June 16, 1972; 1976 (Ex. Sess.), ch. 1, § 15; 1978, ch. 384, § 527, effective June 17, 1978; 1982, ch. 360, § 84, effective July 15, 1982; 2021 ch. 197, § 71, effective June 29, 2021.

Opinions of Attorney General.

This section does not require the publication of a facsimile of the ballot in a special election. OAG 60-255 .

This section requires the publication of the face of the voting machine but does not require publication of a copy of the absentee ballots. OAG 66-295 .

An abstract or condensed content of the ballot face showing all pertinent or necessary information would be sufficient. OAG 67-203 .

In the published ballot abstract, the type might be reduced so long as it is sufficiently legible. OAG 67-203 .

Where the ballot face will differ in various precincts, this section requires the publication of at least separate summaries of each ballot face. OAG 69-319 .

Where the clerk’s instructions regarding the publication of the election ballot were in error and the printer proceeded with a publication that complied with the provisions of this section, the fiscal court was legally obligated to pay any reasonable printing cost resulting from the publication. OAG 69-319 .

Subsection (1) of this section does not repeal by implication the provisions of KRS 242.060 . OAG 71-313 .

424.300. Public Service Commission hearings.

Notices of hearings by the Public Service Commission upon applications by public utilities for rate increases or reduction or discontinuance of service, except where advertised by mail, shall be advertised by the applicant utility in accordance with such reasonable regulations as the commission may prescribe by newspaper publication in the areas that will be affected.

History. Enact. Acts 1958, ch. 42, § 20; 1982, ch. 242, § 6, effective July 15, 1982.

Research References and Practice Aids

Cross-References.

Public Service Commission, KRS ch. 278.

424.310. Railroad Commission hearings. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 42, § 21) was repealed by Acts 2000, ch. 417, § 17, effective December 1, 2000. See KRS ch. 276 for current legislation.

Legislative Research Commission Notes.

(12/1/2000). The contingency on the effectiveness of the repeal of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

424.320. Motor transportation hearings. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 42, § 22) was repealed by Acts 1960, ch. 139, § 15.

424.330. Publication of lists of delinquent taxes by cities — Fee allowance.

Cities may publish a list of uncollected delinquent taxes levied under Section 181 of the Kentucky Constitution, showing the name of and the amount due from each delinquent taxpayer, to be advertised by newspaper publication. A fee equal to the prorated cost of publication per taxpayer per publication may be added to the amount of each tax claim published as publication costs.

History. Enact. Acts 1958, ch. 42, § 23; 1988, ch. 32, § 3, effective July 15, 1988; 1992, ch. 73, § 1, effective July 14, 1992; 1994, ch. 73, § 2, effective July 15, 1994; 2006, ch. 8, § 7, effective July 12, 2006; 2009, ch. 10, § 69, effective January 1, 2010; 2014, ch. 5, § 4, effective July 15, 2014.

Opinions of Attorney General.

Newspapers claiming to have the largest circulation should be required to file with the fiscal court certified statements as to their circulation after which the court can make its selection from the best information available. OAG 64-399 .

This section does not contemplate the readvertising of tax claims involved in certificates of delinquency, but contemplates the publication of only those delinquent taxes for which no certificates of delinquency were issued and filed. OAG 67-312 .

The publication requirements of this section are not applicable to delinquent city taxes. OAG 78-420 ; 78-449.

This chapter applies only to those publications required by law to be published. However, an exception under this act is the list of uncollectible delinquent taxes, which must be published pursuant to this section. OAG 82-128 .

424.340. Publication of notice of fiduciary appointments and date for presentation of creditors’ claims.

The clerk of the probate court shall, at least once each month, cause to be published in the newspaper meeting the requirements of KRS 424.120 , a notice setting forth all fiduciary appointments made since the last publication and including at least the following information: the name and address of the decedent or ward, the name and address of the fiduciary, the date of the fiduciary’s appointment, and the name and address of the attorney representing the fiduciary, if any, and the date by which claims of creditors must be presented. The clerk may charge each fiduciary a fee not to exceed the actual proportionate cost of said notice. Publication of this notice shall neither enlarge nor reduce the obligation of a creditor to present a timely claim, nor the liability of the fiduciary or distributee to pay the same.

History. Enact. Acts 1958, ch. 42, § 24; 1960, ch. 168, § 1; 1970, ch. 257, § 5; 1980, ch. 188, § 292, effective July 15, 1980; 1980, ch. 259, § 29, effective July 15, 1980; 1988, ch. 90, § 28, effective July 15, 1988.

NOTES TO DECISIONS

Cited in:

Vincent v. Bowling Green, 349 S.W.2d 694, 1961 Ky. LEXIS 60 ( Ky. 1961 ).

Opinions of Attorney General.

Although no deadline is specified, county clerks could state in their notices that the claims must be submitted within six months from the date of the qualification of the personal representative. OAG 70-523 .

This section, as amended, contemplates only one publication and KRS 424.130 does not apply. OAG 70-523 .

This section does not refer to KRS 424.130 , but does refer to KRS 424.120 . OAG 70-523 .

A county clerk should state in his notice to creditors to present claims against an estate that the claims must be filed with the personal representative within six months from the date of qualification of the personal representative. OAG 76-215 .

Since the exclusive jurisdiction of probate or estate matters (uncontested) is vested in the district court, the jurisdictional statute, KRS 24A.120 , repeals this section by implication. OAG 78-147 .

424.350. Application for appointment as fiduciary. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 42, § 25) was repealed by Acts 1960, ch. 168, § 2.

424.360. Invitation to bid on municipal bonds.

  1. Except in the case of:
    1. Bonds issued for the purpose of facilitating the construction, renovation, or purchase of new or existing housing as provided by KRS 58.125 ; or
    2. Bonds issued and sold pursuant to any section of the Constitution or the Kentucky Revised Statutes providing for the sale of bonds at a private, negotiated sale; no sale of general obligation bonds or revenue bonds of any governmental unit, political subdivision, or agency thereof shall be made until advertisements for bids are publicized.
  2. Advertisements for bids may be publicized by:
    1. Newspaper publication in the area constituted by the political subdivision or governmental unit and published to afford statewide notice; or
    2. Posting a notice of sale to a nationally recognized electronic bidding system.

History. Enact. Acts 1958, ch. 42, § 26; 1960, ch. 168, § 1; 1984, ch. 157, § 1, effective July 13, 1984; 1986, ch. 259, § 2, effective July 15, 1986; 1992, ch. 210, § 1, effective July 14, 1992; 2019 ch. 35, § 4, effective June 27, 2019.

NOTES TO DECISIONS

Cited in:

Haney v. Somerset, 530 S.W.2d 377, 1975 Ky. LEXIS 54 ( Ky. 1975 ).

424.370. Judicial sale of real property.

Upon request made to the master commissioner by any person who will have a substantial interest in the proceeds of a judicial sale of real estate, the master commissioner shall cause the required advertisement of sale to be published in display form.

History. Enact. Acts 1958, ch. 42, § 27.

Research References and Practice Aids

Cross-References.

Enforcement of judgments, KRS ch. 426.

Kentucky Law Journal.

Comments, Forfeiture and the Land Installment Contract: Sebastian v. Floyd, 72 Ky. L.J. 917 (1983-84).

424.380. Failure to comply with publication requirements.

Any resolution, regulation, ordinance or other formal action of any public agency which is required to be published, that is adopted without compliance with the publication requirements of this chapter, shall be voidable by a court of competent jurisdiction. The Circuit Courts of this state shall have the jurisdiction to enforce the purposes of this chapter, by injunction or other appropriate order, upon application by any citizen of this state. The cost of all proceedings, including a reasonable fee for the attorney of the citizen bringing the action, shall be assessed against the unsuccessful party.

History. Enact. Acts 1982, ch. 430, § 8, effective July 15, 1982.

Opinions of Attorney General.

Acts 1982, ch. 430, which amends this section and several other statutes relating to publication requirements of cities, is basically an amendment of the municipal publication requirements and does not affect the city budget process, financial matters in cities or matters relating to the administration of city finances. It gives a city a choice as to which of two devices relating to finances and expenditures must be published annually rather than requiring that they both be published and affects what a city publishes after the completion of the fiscal year, but does not affect the activities of a city during the fiscal year; it does not impair any vested rights. OAG 82-353 .

As to its publication provisions for municipal governments, Acts 1982, ch. 430, effective July 15, 1982, is applicable to those municipal governments for the fiscal year July 1, 1981 to June 30, 1982. OAG 82-353 .

Penalties

424.990. Penalties.

Any person who violates any provision of KRS 424.110 to 424.370 shall be fined not less than fifty dollars ($50) nor more than five hundred dollars ($500). In addition, any officer who fails to comply with any of the provisions of KRS 424.145(4), 424.220 , 424.230 , 424.240 , 424.250 , 424.290 , or 424.330 shall, for each such failure, be subject to a forfeiture of not less than fifty dollars ($50) nor more than five hundred dollars ($500), in the discretion of the court, which may be recovered only once, in a civil action brought by any citizen of the local government for which the officer serves. The costs of all proceedings, including a reasonable fee for the attorney of the citizen bringing the action, shall be assessed against the unsuccessful party.

History. Enact. Acts 1958, ch. 42, § 28; 1960, ch. 168, § 1; 2020 ch. 87, § 3, effective July 15, 2020.

NOTES TO DECISIONS

1.Standing.

Allegations in plaintiff’s complaint that city board of trustees did not publish financial statements for the city pursuant to KRS 424.220 , that they had not adopted and published a budget pursuant to KRS 424.240 , that they had enacted an ordinance providing for a license fee which did not conform to the requirements of KRS 92.330 , and that they had not advertised for bids to obtain facilities for the city hall pursuant to KRS 424.260 had statutory remedy provided by the legislature which conferred standing on citizens of the governmental unit to bring actions to compel adherence to the law. Fish v. Elliott, 554 S.W.2d 94, 1977 Ky. App. LEXIS 756 (Ky. Ct. App. 1977).

Since recovery for violation may be had only once, the certainty of plaintiff’s citizenship and consequent standing should appear on the face of the pleading. Fish v. Elliott, 554 S.W.2d 94, 1977 Ky. App. LEXIS 756 (Ky. Ct. App. 1977).

Opinions of Attorney General.

It is the duty of the county clerk to see that the ballot is printed according to the provisions of KRS 424.290 and, if the printer followed the clerk’s instructions when printing the ballot, the clerk alone would be subject to the penalties imposed by this section; if, however, the printer disregarded the clerk’s instructions and as a consequence the ballot was not printed in conformity with the requirements of the statute, the publisher would be subject to the penalty provisions of this section. OAG 69-578 .