CHAPTER 21 Judicial Retirement

Court and Judges

21.010. Court consists of seven judges. [Repealed]

Compiler’s Notes.

This section (939, 951: amend. Acts 1966, ch. 255, § 24) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see KRS 22A.010 .

21.020. Appellate court districts. [Repealed.]

Compiler’s Notes.

This section (939 to 946) was repealed by Acts 1972, ch. 305, § 2.

21.021. Appellate court districts — Election of judges — Jurisdiction. [Repealed.]

Compiler’s Notes.

This section (Acts 1972, ch. 305, § 1) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see KRS 22A.010 .

21.030. New counties, part of which district. [Repealed]

Compiler’s Notes.

This section (948) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976.

21.040. Election of judges, when held. [Repealed].

Compiler’s Notes.

This section (947: amend. Acts 1972, ch. 305, § 3) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976.

21.050. Power of court and judges — Writs and process. [Repealed.]

Compiler’s Notes.

This section (949, 954) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see KRS 22A.050 .

21.055. Reversal or modification of judgments. [Repealed.]

Compiler’s Notes.

This section (C.C. 514, 515: amend. 1968 Ky. Acts ch. 152, § 5) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see KRS 22A.060 .

21.056. Procedure for reversal or modificatoin of judgment — Method of taking and perfecting. [Repealed.]

Compiler’s Notes.

This section (CC. 734: amend. and trans. Acts 1952, ch. 84, § 33) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see KRS 22A.060 .

21.060. Appellate civil jurisdiction of Court of Appeals. [Repealed.]

Compiler’s Notes.

This section (950-1: amend. Acts 1952, ch. 24, § 1) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see KRS 22A.020 .

21.070. Amount in controversy, how ascertained. [Repealed.]

Compiler’s Notes.

This section (950-2) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see KRS 22A.020 .

21.080. Appeals in cases involving less than $2500. [Repealed.]

Compiler’s Notes.

This section (950-3: amend. Acts 1952, ch. 24, § 2; 1958, ch. 101) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see 22A.020 .

21.085. Time limit on right of appeal by persons under disability. [Repealed.]

Compiler’s Notes.

This section (C.C. 745: amend. & trans. Acts 1952, ch. 84, § 34) was repealed by Acts 1960, ch. 104, § 1.

21.090. Terms of court — Absence of judges. [Repealed.]

Compiler’s Notes.

This section (953, 954) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976.

21.100. Effect of equal division of court. [Repealed.]

Compiler’s Notes.

This section (955) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976.

21.110. Travel expense allowance or equivalent for judges and commissioners. [Repealed.]

Compiler’s Notes.

This section (Acts 1948, ch. 61, §§ 2, 3) was repealed by Acts 1950, ch. 123, § 29.

21.120. Enforcement of mandates. [Repealed.]

Compiler’s Notes.

This section (C.C. 762: amend. & trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see KRS 22A.050 .

21.130. Damages upon affirmance. [Repealed.]

Compiler’s Notes.

This section (C.C. 764: amend. & trans. Acts 1952, ch. 84, § 35) was repealed by Acts 1976, ch. 59, § 3 and Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see KRS 26A.300 .

21.135. Opinions to be delivered. [Repealed.]

Compiler’s Notes.

This section (C.C. 765: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976.

21.140. Appeals in criminal cases. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 234, § 1; 1964, ch. 72, § 1; 1974, ch. 406, § 297) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see KRS 22A.020 .

Officers and Employees

21.150. Commissioners of Court of Appeals. [Repealed.]

Compiler’s Notes.

This section (962b-1: amend. Acts 1942, ch. 49, §§ 1, 2; 1960, ch. 84, Act III, § 16; 1966, ch. 255, § 25; 1974, ch. 203, § 1) was repealed by Acts 1976, ch. 67, § 14.

21.151. Compensation of retired commissioners of Court of Appeals. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 123, § 4) was repealed by Acts 1960, ch. 84, Art. III, § 16.

21.155. Law clerks for court. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 156) was repealed by Acts 1954, ch. 238, § 2.

21.160. Clerical assistants for judges and commissioners. [Repealed.]

Compiler’s Notes.

This section (962a: amend. Acts 1946, ch. 248) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976.

21.170. Clerk’s salary. [Repealed.]

Compiler’s Notes.

This section (960a-1: amend. Acts 1946, ch. 26, § 1) was repealed by Acts 1950, ch. 123, § 29. For present law see KRS 64.480 .

21.180. Salaries of deputies of clerk fixed by court. [Repealed.]

Compiler’s Notes.

This section (960a-3) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see KRS 22A.040 .

21.190. Assistance clerk of Court of Appeals. [Repealed.]

Compiler’s Notes.

This section (960a-4) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see KRS 22A.040 .

21.200. Notice to special judges of hearing. [Repealed.]

Compiler’s Notes.

This section (952) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see KRS 22A.040 .

21.210. Inspection of clerk’s office by court. [Repealed.]

Compiler’s Notes.

This section (961) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see KRS 22A.040 .

21.220. Administrative director. [Repealed.]

Compiler’s Notes.

This section (962: amend. Acts 1954, ch. 238, § 1) was repealed by Acts 1960, ch. 84, Art. 1, § 4.

21.230. Process, to whom directed. [Repealed.]

Compiler’s Notes.

This section (4551-5: amend. Acts 1966, ch. 255, § 26) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see KRS 22A.070 .

21.240. Court reporter and his clerk — Appointment and compensation. [Repealed.]

Compiler’s Notes.

This section (955a-1) was repealed by Acts 1968, ch. 152, § 168.

21.250. Duties of reporter. [Repealed.]

Compiler’s Notes.

This section (955a-2, 955a-8) was repealed by Acts 1950, ch. 156, § 8.

21.260. Publication of opinions of Court of Appeals — No copyright. [Repealed.]

Compiler’s Notes.

This section (955a-3: amend. Acts 1946, ch. 146, § 1; 1950, ch. 156, § 7) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976. For present law see KRS 21A.070 .

21.270. Number of copies; distribution. [Repealed.]

Compiler’s Notes.

This section (955a-4) was repealed by Acts 1950, ch. 156, § 8.

21.280. No copyright; preservation of pages or forms. [Repealed.]

Compiler’s Notes.

This section (955a-5: amend. Acts 1946, ch. 146, § 2) was repealed by Acts 1950, ch. 156, § 8.

21.290. Reprinting of reports. [Repealed.]

Compiler’s Notes.

This section (955a-6) was repealed by Acts 1950, ch. 156, § 8.

21.300. Advance sheets, publication. [Repealed.]

Compiler’s Notes.

This section (955a-7) was repealed by Acts 1950, ch. 156, § 8.

21.305. Circuit judges to be special commissioners of Court of Appeals — Duties — Compensation — Removal. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 9, § 1) was repealed by Acts 1976, ch. 67, § 14, effective March 23, 1976.

21.310. Advance sheets, subscriptions. [Repealed.]

Compiler’s Notes.

This section (955a-10) was repealed by Acts 1950, ch. 156, § 8.

21.320. Certification of cost of publication. [Repealed.]

Compiler’s Notes.

This section (955a-9) was repealed by Acts 1950, ch. 156, § 8.

Judicial Retirement System for Judges and Commissioners

21.345. Definitions.

  1. For the purposes of KRS 21.350 to 21.510 , “retirement” means a voluntary resignation or a failure of reelection, but does not include a removal for cause.
  2. The word “service” as used in KRS 21.370 to 21.480 means service transferred from the Kentucky Retirement Systems pursuant to KRS 21.370 (2), service as a city police judge purchased pursuant to KRS 21.370(3), and service as a Justice of the Supreme Court, as a Judge of the Court of Appeals created by Section 111 of the Constitution of Kentucky, as a regular Circuit Judge, or as a regular Judge of the District Court, including service in one (1) and then another of those capacities. It also includes service as a special Circuit Judge under the conditions described in subsection (3) of this section, as a Judge or commissioner of the former Court of Appeals, or as director of the Administrative Office of the Courts, prior to January 1, 1976, and service continuing beyond that date, in any capacity in or for the Court of Justice, by any person who held the office of commissioner of the former Court of Appeals, or director of the Administrative Office of the Courts, on December 31, 1975. The word “service” embraces only service performed while a member of the retirement system established by KRS 21.350 to 21.510 , except that service in any of the positions mentioned, before the Judicial Retirement System was made applicable to that category of position, and service transferred from the Kentucky Retirement Systems pursuant to KRS 21.370(2), shall be included.
  3. For the purposes of KRS 21.345 to 21.510 , a “year” of service means a total of twelve (12) months of service, which need not be in the same calendar year. Service for any part of the calendar month in which the member’s term of service begins or ends shall be deemed to constitute a month of service.
  4. The term “accumulated employer credit” as used in KRS 21.345 to 21.580 means the employer pay credit deposited to the member’s account and interest credited on such amounts as provided by KRS 21.402 .
  5. The term “accumulated contributions” as used in KRS 21.345 to 21.580 , means:
    1. For a member who began participating in the Judicial Retirement Plan prior to January 1, 2014, the contributions made by the member to the Judicial Retirement Plan; and
    2. For a member who begins participating in the Judicial Retirement Plan on or after January 1, 2014, in the hybrid cash balance plan, the contributions made by the member to the Judicial Retirement Plan and interest credited on such amounts as provided by KRS 21.402 .
  6. The term “accumulated account balance” as used in KRS 21.345 to 21.580 means:
    1. For members who began participating in the Judicial Retirement Plan prior to January 1, 2014, the member’s accumulated contributions; or
    2. For members who begin participating in the Judicial Retirement Plan on or after January 1, 2014, in the hybrid cash balance plan as provided by KRS 21.402 , the combined sum of the member’s accumulated contributions and the member’s accumulated employer credit.
  7. The provisions of this section shall not apply to any director of the Administrative Office of the Courts appointed after January 1, 1976, nor shall they apply to any commissioner of the Court of Appeals not appointed prior to January 1, 1976. The administrative director of the courts and commissioners of the Court of Appeals appointed prior to January 1, 1976, shall continue to be members of the system so long as they continue to render service in any capacity in or for the Court of Justice.

History. Enact. Acts 1960, ch. 84, Art. III, § 5; 1962, ch. 9, § 2 (last sentence); 1974, ch. 85, § 1; 1976, ch. 62, § 14; 1978, ch. 193, § 1, effective July 1, 1978; 1980, ch. 271, § 1, effective July 15, 1980; 1988, ch. 299, § 3, effective July 15, 1988; 1990, ch. 480, § 2, effective July 13, 1990; 1992, ch. 189, § 2, effective July 14, 1992; 1996, ch. 167, § 29, effective July 15, 1996; 2013, ch. 120, § 19, effective July 1, 2013; 2016 ch. 12, § 4, effective July 15, 2016.

Compiler’s Notes.

Subsection (1) of this section was formerly compiled as KRS 21.390 .

NOTES TO DECISIONS

Cited:

Bd. of Trs. of the Judicial Form Ret. Sys. v. AG, 132 S.W.3d 770, 2003 Ky. LEXIS 238 ( Ky. 2003 ), rehearing denied, Bd. of Trs. of the Judicial Form Ret. Sys. v. AG of Ky., 2004 Ky. LEXIS 129 ( Ky. 2004 ).

Opinions of Attorney General.

The Judicial Retirement System is a “governmental plan” which includes any plan established by a state or agency for its employees, and is thus excluded from the provisions of the Pension Reform Act 29 USCS, § 1003 and 45 USCS, §§ 215n, 228(a)). OAG 75-206 .

Research References and Practice Aids

Cross-References.

Judge, retired for permanent disability, eligibility for retirement benefits, SCR 4.270.

Kentucky Law Journal.

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

21.347. Judicial Retirement Plan — Judicial retirement fund — Established.

The Judicial Retirement System established by KRS 21.345 to 21.510 shall hereafter be designated and known as the Judicial Retirement Plan. There is established within that plan a state fund to be known as the judicial retirement fund, which shall consist of all money and securities of the Judicial Retirement System immediately prior to July 1, 1980; all allotments to be received of moneys theretofore appropriated to or for the Judicial Retirement System or Judicial Retirement Board and not yet allotted; all state appropriations to the judicial retirement fund or the Judicial Retirement Plan; all earnings from investment of the fund (including insurance benefits); and all contributions from members of the plan. The fund may have a subordinate administrative account. The benefits provided to be paid by reason of membership in the Judicial Retirement Plan shall not be chargeable to any other retirement fund.

History. Enact. Acts 1980, ch. 407, § 18, effective July 1, 1980; 1984, ch. 111, § 24, effective July 13, 1984.

21.350. Establishment of system; membership.

  1. Except as provided in subsection (2) of this section, membership in the retirement system established by KRS 21.350 to 21.510 shall consist of, and be confined to, Justices of the Supreme Court, Judges of the Court of Appeals created by Section 111 of the Constitution of Kentucky, Circuit Judges, and Judges of the District Court, who have elected to participate in accordance with KRS 21.360 .
  2. Any person who was a member on December 31, 1975, by virtue of holding on that date the office of commissioner of the former Court of Appeals or director of the Administrative Office of the Courts shall continue in membership so long as he continues to render service in any capacity in or for the Court of Justice.
  3. The limitation of membership made by this section does not affect rights to benefits based on service rendered before the 1978 amendment to this section took effect.

History. Enact. Acts 1960, ch. 84, Art. III, § 1; 1978, ch. 193, § 2, effective July 1, 1978; 1980, ch. 188, § 196, effective July 15, 1980.

Research References and Practice Aids

Kentucky Law Journal.

Bivin, The Historical Developments of the Kentucky Courts, 47 Ky. L.J. 465 (1959).

21.355. Membership. [Repealed.]

Compiler’s Notes.

This section (Acts 1976, ch. 60, § 1) was repealed by Acts 1978, ch. 193, § 10, effective July 1, 1978. For present law see KRS 21.350 .

21.357. Summary plan description — Publication — Recipients.

  1. The Judicial Retirement Board shall prepare and furnish to all active members a summary plan description, written in a manner calculated to be understood by the members and beneficiaries, and sufficiently accurate and comprehensive to reasonably apprise them of their rights and obligations under the Judicial Retirement System.
  2. The summary plan description shall include:
    1. The name and address of the retirement system, the name of the manager, and the name and address of each member of the Judicial Retirement Board;
    2. The name and address of the person designated for the service of legal process;
    3. The system’s requirements for participation and benefits;
    4. A description of retirement formulas for normal, early and disability retirement, and survivor benefits;
    5. A description of the requirements for vesting of pension benefits;
    6. A list of circumstances which would result in disqualification, ineligibility, or denial or loss of benefits;
    7. The sources of financing retirement benefits, and statutory requirements for funding;
    8. A statement after each actuarial valuation as to whether funding requirements are being met; and
    9. The procedures to be followed in presenting claims for benefits under the plan, and the remedies available under the plan for the redress of claims which are denied in whole or in part.
  3. The board may publish the summary plan description in the form of a comprehensive pamphlet or booklet, or in the form of periodic newsletters which shall incorporate all the information required in the summary plan description within a period of two (2) years. Any changes in statutory requirements or administrative practices which alter the provisions of the plan as described in the summary plan description shall be summarized as required in subsection (1) of this section and furnished to members in the form of a supplement to a comprehensive booklet, or reported in the periodic newsletter.
  4. The board shall provide to retirees and beneficiaries so much of the summary plan description as they need to understand changes in benefits which apply to them.

History. Enact. Acts 1980, ch. 246, § 14, effective July 15, 1980.

21.360. Election to participate — Delayed election. [Declared void — See LRC Note Below]

    1. Each Judge of the District Court in office on July 1, 1978, may within thirty (30) days after that date, and any judge or justice of any court entitled to be a member thereafter taking office may within thirty (30) days after taking office, elect to make monthly contributions to the retirement system in an amount equal to: (1) (a) Each Judge of the District Court in office on July 1, 1978, may within thirty (30) days after that date, and any judge or justice of any court entitled to be a member thereafter taking office may within thirty (30) days after taking office, elect to make monthly contributions to the retirement system in an amount equal to:
      1. Five percent (5%) of his or her monthly official salary, if the judge or justice became a member of the Kentucky Judicial Retirement Plan prior to September 1, 2008;
      2. Six percent (6%) of his or her monthly official salary, if the judge or justice became a member of the Kentucky Judicial Retirement Plan on or after September 1, 2008, but prior to January 1, 2014; or
      3. Six percent (6%) of his or her monthly official salary, if the judge or justice who becomes a member of the Kentucky Judicial Retirement Plan on or after January 1, 2014, which shall be used to fund benefits as follows:
        1. Five percent (5%) of the monthly official salary shall be used to provide funding for benefits provided under KRS 21.402 ; and
        2. One percent (1%) of the monthly official salary to be used exclusively to help fund retiree health benefits as provided by KRS 21.427 and which shall not be refunded to the member if the member withdraws his or her accumulated account balance as provided by KRS 21.460 . The deducted amounts under this subdivision shall be credited to an account established pursuant to 26 U.S.C. sec. 401(h) , within the fund established by KRS 21.347 .
    2. The election shall be effective to establish membership in the system as of July 1, 1978, or as of the date the judge or justice took office, as the case may be. The election shall be addressed to and filed with the secretary of the Finance and Administration Cabinet, and shall constitute an authorization by the member, to the secretary, to thereafter cause to be deducted from the member’s official salary, each month, the amount required by paragraph (a) of this subsection, as a voluntary contribution by the member towards the funding of the retirement system. For a member who began contributing to the Judicial Retirement Plan prior to January 1, 2014, the contribution shall continue until the judge or justice is vested in a service retirement allowance equal to one hundred percent (100%) of final compensation. Thereafter employee contributions shall be discontinued but continued service and retirement benefits shall not be affected thereby.
  1. A judge or justice entitled to elect membership in the retirement system who failed to elect membership within thirty (30) days after taking office in 1980 or who elected membership in the Kentucky Employees Retirement System may elect membership not later than August 31, 2005. An election, upon being made pursuant to this section, shall operate to create an inviolable contract between the member entitled to elect membership under this subsection and the Commonwealth, guaranteeing to and vesting in the member the rights and benefits provided for under the terms and conditions of KRS 21.350 to 21.510 , except that the General Assembly reserves the right to amend, reduce, or suspend any legislative changes to the provisions of KRS 21.345 to 21.580 that become effective on or after July 1, 2018.
    1. When any judge makes a delayed election of membership in the Judicial Retirement Plan under subsection (2) of this section, his active membership in the Kentucky Employees Retirement System shall terminate, as of the date his membership in the Judicial Retirement Plan becomes effective, and any credit in the Kentucky Employees Retirement System, earned for service as a judge, which he then has or which he subsequently regains while being an active member of the Judicial Retirement Plan, shall be transferred to and counted as service credit in the Judicial Retirement Plan, and shall no longer constitute credit in the Kentucky Employees Retirement System, except for the purpose of validating any other credit in that system, if the member pays the difference, if any, between the amount transferred from the Kentucky Employees Retirement System and the actuarial value of the transferred service. (3) (a) When any judge makes a delayed election of membership in the Judicial Retirement Plan under subsection (2) of this section, his active membership in the Kentucky Employees Retirement System shall terminate, as of the date his membership in the Judicial Retirement Plan becomes effective, and any credit in the Kentucky Employees Retirement System, earned for service as a judge, which he then has or which he subsequently regains while being an active member of the Judicial Retirement Plan, shall be transferred to and counted as service credit in the Judicial Retirement Plan, and shall no longer constitute credit in the Kentucky Employees Retirement System, except for the purpose of validating any other credit in that system, if the member pays the difference, if any, between the amount transferred from the Kentucky Employees Retirement System and the actuarial value of the transferred service.
    2. Any credit he then has in the Kentucky Employees Retirement System, earned for service in any capacity other than a judge, shall not be affected. Notwithstanding any provisions of KRS 61.680 to the contrary, final compensation used to determine benefits for any service credit remaining in the Kentucky Employees Retirement System shall be based on the highest years of compensation as a judge whether the years occur before or after the judge elects membership in the Judicial Retirement Plan.
    3. No person may attain credit in more than one (1) of the retirement plans or systems mentioned in this section for the same period of service. When credit is transferred from the Kentucky Employees Retirement System to the Judicial Retirement Plan, the Kentucky Employees Retirement System shall transfer to the Judicial Retirement Fund an amount equal to the employee’s and employer’s contributions attributable to that credit, together with interest on the contributions from the date made to the date of transfer at the actuarially-assumed interest rate of the Kentucky Employees Retirement System in effect at the time the contributions were made, compounded annually at that same interest rate.
  2. Membership and benefit rights for judges and justices (other than Judges of the District Court), and for the commissioners and administrative director, who took office prior to July 1, 1978, shall be dependent upon valid elections having been made under this section (and KRS 21.355 and 21.365 ) prior to the 1978 amendment to this section. The terms of such elections, including the contribution rate, shall continue to govern for the duration of the member’s service.
  3. When any Judge of the District Court in office on July 1, 1978, elects membership in the Judicial Retirement Plan in accordance with this section, his membership in the Kentucky Employees Retirement System shall terminate as of July 1, 1978, and any credit in that system he earned for service as a Judge of the District Court shall be nullified; provided that the effect of such service to validate any other service credit in that system shall not be nullified.
  4. The state shall,  solely for the purpose of compliance with Section 414(h) of the United States Internal Revenue  Code, pick up the employee contributions  required by this section for all compensation earned after August  1, 1982, and the contributions so picked up shall be treated as employer  contributions in determining tax treatment under the United States  Internal Revenue Code and KRS 141.010 . The picked-up employee contribution  shall satisfy all obligations to the retirement system satisfied prior  to August 1, 1982, by the employee contribution, and the picked-up  employee contribution shall be in lieu of an employee contribution.  The state shall pay these picked-up employee contributions from the  same source of funds which is used to pay earnings to the employee.  The employee shall have no option to receive the contributed amounts  directly instead of having them paid by the employer to the system.  Employee contributions picked up after August 1, 1982, shall be treated  for all purposes of KRS 21.345 to 21.570 in the  same manner and to the same extent as employee contributions made  prior to August 1, 1982.
  5. An election once made under this section, either to participate or not to participate in the Judicial Retirement Plan, shall be considered to apply, to all future service in any office covered by the plan, except as provided by KRS 21.374 and 21.385(3), whether such service is in the same or a different office, and whether or not it is continuous.

HISTORY: Enact. Acts 1960, ch. 84, Art. III, § 2; 1974, ch. 74, Art. II, § 9(2); 1978, ch. 193, § 3, effective July 1, 1978; 1982, ch. 166, § 5, effective July 15, 1982; 1982, ch. 458, § 9, effective April 15, 1982; 1984, ch. 111, § 25, effective July 13, 1984; 1990, ch. 360, § 1, effective July 13, 1990; 1990, ch. 476, Pt. VII D, § 642, effective April 11, 1990; 1994, ch. 266, § 6, effective July 15, 1994; 2005, ch. 86, § 6, effective June 20, 2005; 2008 (1st. Ex. Sess.), ch. 1, § 5, effective June 27, 2008; 2013, ch. 120, § 20, effective July 1, 2013; 2018 ch. 171, § 65, effective April 14, 2018; 2018 ch. 207, § 65, effective April 27, 2018; 2018 ch. 107, § 5, effective July 14, 2018.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

(7/14/2018). This statute was amended by 2018 Ky. Acts chs. 107, 171, and 207, which do not appear to be in conflict and have been codified together.

Compiler's Notes.

KRS 21.355 and 21.365 referred to in subsection (4) of this section were repealed by Acts 1978, ch. 193, § 10.

Section 414(h) of the United States Internal Revenue Code, referred to in (6), may be found as 26 USCS § 414(h).

NOTES TO DECISIONS

Cited:

Karem v. Bd. of Trs. of the Judicial Form Ret. Sys., 293 S.W.3d 401, 2009 Ky. App. LEXIS 62 (Ky. Ct. App. 2009).

21.365. Circuit judges and director of administrative office of the courts entitled to participate. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 9, §§ 2, 3; 1968, ch. 145; 1976, ch. 62, § 15) was repealed by Acts 1978, ch. 193, § 10, effective July 1, 1978.

21.370. Term of service to qualify if member began participating before January 1, 2014 — Transfer of service credit to Judicial Retirement Plan — Purchase of service credit for service as police judge and for military service — Special provisions for active members.

    1. Except as provided in subsection (2) of KRS 21.410 and in subsection (2) of KRS 21.420 , no benefits shall be payable under KRS 21.350 to 21.480 to any member who began participating in the Judicial Retirement Plan prior to January 1, 2014, or to his surviving spouse, unless he has completed at least eight (8) years of service, including service before becoming a member. (1) (a) Except as provided in subsection (2) of KRS 21.410 and in subsection (2) of KRS 21.420 , no benefits shall be payable under KRS 21.350 to 21.480 to any member who began participating in the Judicial Retirement Plan prior to January 1, 2014, or to his surviving spouse, unless he has completed at least eight (8) years of service, including service before becoming a member.
    2. No surviving spouse of a retired member shall be entitled to any benefits unless the person was the spouse of the member at the time he retired.
  1. A member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who has qualified for benefits under this section may transfer to the Judicial Retirement Plan up to ten (10) years of service credit which he has earned in a retirement system administered by Kentucky Retirement Systems, and he may transfer to the Judicial Retirement Plan up to ten (10) years of service credit which he has earned in the Kentucky Legislators’ Retirement Plan. If the member elects to transfer his service credit, the system or plan from which the transfer is made shall transfer to the judicial retirement fund an amount equal to the employee’s and employer’s contributions attributable to that credit, together with interest on the contributions from the date made to the date of transfer at the actuarially assumed interest rate of the system or plan from which the transfer is made in effect at the time the contributions were made, compounded annually at that same interest rate. The member shall be entitled to the transferred service credit, at the rate at which he qualifies under KRS 21.400 , when he pays the total difference between the amount of the funds transferred and the cost of the credit to the Judicial Retirement Plan, as determined by the actuary for the Judicial Retirement Plan. The member may pay by transfer, if authorized under subsection (5)(d) of this section, or by lump sum or increments as set forth in subsection (4)(b) of this section. The payments made under this section shall be considered accumulated contributions of the member and shall not be picked up by the employer under KRS 21.360(6).
  2. Any active member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who is vested in the Judicial Retirement Plan under subsection (1) of this section or KRS 21.375 , shall receive service credit for a maximum of four (4) years for his period of service as a city police judge for a city within the Commonwealth of Kentucky, if the service was performed prior to the first Monday in January, 1978, and if the service has not been credited to the member’s account with any other public defined benefit plan, by paying the retirement system one hundred percent (100%) of the actuarial cost of the service as determined by the board of trustees, based on assumptions used in the most recent biennial evaluation. The period of service to be purchased shall be certified to the board of trustees by the custodian of the records of the city for which the service was performed. The service credit shall be awarded and the cost shall be determined in conformity with the rate which applies to the member in question under KRS 21.400 . Service credit awarded under this subsection shall be equivalent, for all purposes of the Judicial Retirement Plan, to other service credit earned in the plan. The payments made under this section shall be considered accumulated contributions of the member and shall not be picked up by the employer under KRS 21.360(6).
      1. Any active member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who is vested in the Judicial Retirement Plan under subsection (1) of this section or KRS 21.375 , or his beneficiary acting in his place if the member dies prior to retirement, shall receive service credit for a maximum of four (4) years for his period of service in the Armed Forces of the United States, if his discharge therefrom is honorable and he has not been credited with the service by any other retirement system administered by the Commonwealth of Kentucky, by paying the retirement system thirty-five percent (35%) of the actuarial cost of the service as determined by the board of trustees, based on assumptions used in the most recent biennial evaluation. The service credit shall be awarded and the cost shall be determined in conformity with the rate which applies to the member in question under KRS 21.400 . Service credit awarded under this subsection shall be equivalent, for all purposes of the Judicial Retirement Plan, to other service credit earned in the plan. (4) (a) 1. Any active member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who is vested in the Judicial Retirement Plan under subsection (1) of this section or KRS 21.375 , or his beneficiary acting in his place if the member dies prior to retirement, shall receive service credit for a maximum of four (4) years for his period of service in the Armed Forces of the United States, if his discharge therefrom is honorable and he has not been credited with the service by any other retirement system administered by the Commonwealth of Kentucky, by paying the retirement system thirty-five percent (35%) of the actuarial cost of the service as determined by the board of trustees, based on assumptions used in the most recent biennial evaluation. The service credit shall be awarded and the cost shall be determined in conformity with the rate which applies to the member in question under KRS 21.400 . Service credit awarded under this subsection shall be equivalent, for all purposes of the Judicial Retirement Plan, to other service credit earned in the plan.
      2. Any active member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who is vested in the Judicial Retirement Plan may purchase and receive service credit for one (1) month of service for each six (6) months of service in the reserves or the National Guard by paying the retirement system one hundred percent (100%) of the actuarial cost of the service as determined by the board of trustees, based on assumptions used in the most recent biennial evaluation. The service credit shall be awarded and the cost shall be determined in conformity with the rate that applies to the member in question as provided in KRS 21.400. Service credit awarded under this subsection shall be equivalent, for all purposes of the Judicial Retirement Plan, to other service credit earned in the plan. The service in the military reserves or the National Guard shall be treated as service earned prior to participation in the plan. The purchase can be made by the member in a transfer, if authorized under subsection (5)(d) of this section, or by a lump-sum payment or installment payments. The payment shall not be picked up by the employer as provided in KRS 21.360(6).
    1. The member, if the member began participating in the Judicial Retirement Plan prior to January 1, 2014, may purchase all of his military service credit at one (1) time, or in increments of no less than one (1) year, unless there is a fraction remaining after all full years have been paid for. Payment of the total or the increment may be made by lump sum or by monthly installments through payroll deduction. If the member chooses to pay by installment, the cost of the service credit shall be computed in the same manner as for a lump-sum payment, which shall be the principal. Interest, at the annual actuarial rate in effect at the time each payment is made, shall be added to each monthly payment at the rate of one-twelfth (1/12) of the annual interest rate applied to the declining principal amount. Installment purchases shall be for no less than twelve (12) nor more than sixty (60) months. If the member leaves office before completing his installment payments, he may satisfy his contract by a lump-sum payment of the remaining principal amount, but no further installment payments shall be accepted thereafter. In this case, the member shall be credited with the military service credit for which he has paid, in years or months but no fraction less than a full month, and any payment remaining after credit for full months has been awarded shall be returned to the member.
    2. The payments made under this section shall be considered accumulated contributions of the member and shall not be picked up by the employer under KRS 21.360(6).
    1. Any active member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who is vested in the Judicial Retirement Plan under subsection (1) of this section or KRS 21.375 shall receive service credit for a maximum of four (4) years each for his period of service as a Domestic Relations Commissioner, a Master Commissioner, or a District Court Trial Commissioner of the Commonwealth of Kentucky, or a combination thereof, if the service has not been credited to the member’s account with any other public defined benefit plan, by paying the retirement system one hundred percent (100%) of the actuarial cost of the service as determined by the board of trustees, based on assumptions used in the most recent biennial evaluation. The period of service to be purchased shall be certified to the board of trustees by the custodian of the records. The service credit shall be awarded and the cost shall be determined in conformity with the rate that applies to the member in question under KRS 21.400 . Service credit awarded under this subsection shall be equivalent, for all purposes of the Judicial Retirement Plan, to other service credit earned in the plan. The member may pay by transfer as set forth in paragraph (d) of this subsection, or by lump sum or increments as set forth in subsection (4)(b) of this section. The payments made under this section shall be considered accumulated contributions of the member and shall not be picked up by the employer under KRS 21.360(6). (5) (a) Any active member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who is vested in the Judicial Retirement Plan under subsection (1) of this section or KRS 21.375 shall receive service credit for a maximum of four (4) years each for his period of service as a Domestic Relations Commissioner, a Master Commissioner, or a District Court Trial Commissioner of the Commonwealth of Kentucky, or a combination thereof, if the service has not been credited to the member’s account with any other public defined benefit plan, by paying the retirement system one hundred percent (100%) of the actuarial cost of the service as determined by the board of trustees, based on assumptions used in the most recent biennial evaluation. The period of service to be purchased shall be certified to the board of trustees by the custodian of the records. The service credit shall be awarded and the cost shall be determined in conformity with the rate that applies to the member in question under KRS 21.400 . Service credit awarded under this subsection shall be equivalent, for all purposes of the Judicial Retirement Plan, to other service credit earned in the plan. The member may pay by transfer as set forth in paragraph (d) of this subsection, or by lump sum or increments as set forth in subsection (4)(b) of this section. The payments made under this section shall be considered accumulated contributions of the member and shall not be picked up by the employer under KRS 21.360(6).
    2. Any active member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who is vested in the Judicial Retirement Plan under subsection (1) of this section or KRS 21.375 shall receive service credit for his period of service to the United States Government, other than service in the Armed Forces, if the service has not been credited to the member’s account with any other public defined benefit plan, by paying the retirement system one hundred percent (100%) of the actuarial cost of the service as determined by the board of trustees, based on assumptions used in the most recent biennial evaluation. The period of service to be purchased shall be certified to the board of trustees by the custodian of the records. The service credit shall be awarded and the cost shall be determined in conformity with the rate that applies to the member in question under KRS 21.400. Service credit awarded under this subsection shall be equivalent, for all purposes of the Judicial Retirement Plan, to other service credit earned in the plan. The member may pay by transfer as set forth in paragraph (d) of this subsection, or by lump sum or increments as set forth in subsection (4)(b) of this section. The payments made under this section shall be considered accumulated contributions of the member and shall not be picked up by the employer under KRS 21.360(6).
    3. Any member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who was in office on June 21, 2001, and who was in active contributing status to the applicable retirement plan on June 21, 2001, and who has at least one hundred eighty (180) months of service credit may purchase a combined maximum total of five (5) years retirement service credit that is not otherwise purchasable, by paying the retirement system one hundred percent (100%) of the actuarial cost of the service as determined by the board of trustees, based on assumptions used in the most recent biennial evaluation. The service credit shall be awarded and the cost shall be determined in conformity with the rate that applies to the member in question under KRS 21.400. Service credit awarded under this subsection shall be equivalent, for all purposes of the Judicial Retirement Plan, to other service credit earned in the plan, except that the service purchased under this subsection shall not be used in determining a retirement allowance until the member has accrued at least two hundred forty (240) months of service, excluding service purchased under this subsection. If the member does not accrue at least two hundred forty (240) months of service, excluding service purchased under this subsection, then upon retirement, death, or written request following termination, the payment shall be refunded. The member may pay by transfer as set forth in paragraph (d) of this subsection, or by lump sum or increments as set forth in subsection (4)(b) of this section. The payments made under this section shall be considered accumulated contributions of the member and shall not be picked up by the employer under KRS 21.360(6).
    4. A member of the Judicial Retirement Plan may purchase service credit under the provisions of this section by transferring funds through a direct trustee-to-trustee transfer permitted under the applicable sections of the Internal Revenue Code and any regulations or rulings issued thereunder, or through a direct rollover as contemplated by and permitted under 26 U.S.C. sec. 401(a)(31) . Service credit may also be purchased by a rollover of funds pursuant to and permitted under the rules specified in 26 U.S.C. sec. 402(c) and 26 U.S.C. sec. 408(d)(3) . The Judicial Retirement Fund shall accept the transfer or rollover to the extent permitted under the rules specified in the applicable provisions of the Internal Revenue Code and any regulations and rulings issued thereunder. The amount shall be credited to the individual member’s contribution account and shall be considered accumulated contributions of the member and shall not be picked up by the employer under KRS 21.360(6).

History. Enact. Acts 1960, ch. 84, Art. III, § 3; 1962, ch. 9, § 4; 1974, ch. 386, § 2; 1990, ch. 480, § 1, effective July 13, 1990; 1992, ch. 189, § 1, effective July 14, 1992; 1994, ch. 266, § 2, effective July 15, 1994; 1998, ch. 389, § 7, effective July 15, 1998; 2001, ch. 146, § 1, effective June 21, 2001; 2002, ch. 90, § 3, effective July 15, 2002; 2002, ch. 258, § 2, effective July 15, 2002; 2005, ch. 86, § 7, effective June 20, 2005; 2013, ch. 120, § 21, effective July 1, 2013.

21.372. Limitations and exclusions on increases in final compensation for members retiring on or after January 1, 2018 — Exception for bona fide promotion or career development — Exclusion — Determination by board — Administrative regulations — Inapplicability to hybrid cash balance plan participants.

  1. For purposes of this section:
    1. “Bona fide promotion or career advancement”:
      1. Means a professional advancement in substantially the same line of work held by the member in the four (4) years immediately prior to the final sixty (60) months preceding retirement or a change in employment position based on the training, skills, education, or expertise of the member that imposes a significant change in job duties and responsibilities to clearly justify the increased compensation to the member, including any circumstance when a member is elected or appointed to another court within the Court of Justice; and
      2. Does not include any circumstance where a judge or justice participating in the Judicial Retirement Plan takes a position of employment with an employer participating in any of the other state-administered retirement systems; and
    2. “Year” has the same meaning as in KRS 21.345(3).
    1. For members retiring on or after January 1, 2018, the plan shall identify any consecutive year utilized in determining the member’s final compensation in which the member’s compensation increased at a rate of ten percent (10%) or more over the member’s compensation in the immediately preceding year. (2) (a) For members retiring on or after January 1, 2018, the plan shall identify any consecutive year utilized in determining the member’s final compensation in which the member’s compensation increased at a rate of ten percent (10%) or more over the member’s compensation in the immediately preceding year.
    2. Except as limited or excluded by subsections (3) and (4) of this section, any amount of increase in compensation for a year identified under paragraph (a) of this subsection that exceeds ten percent (10%) more than the member’s compensation from the immediately preceding year shall not be used in the calculation of the member’s final compensation for the purposes of determining the member’s monthly pension benefit under KRS 21.400 .
    3. If the member’s final compensation is reduced for the purposes of determining the member’s pension benefit under KRS 21.400 as provided by paragraph (b) of this subsection, the retirement system shall, notwithstanding KRS 21.460 and as applicable, refund the member contributions attributable to the reduction in creditable compensation.
  2. In order to ensure the prospective application of the potential reduction in pension benefits as provided in subsection (2) of this section, only the compensation earned by the retiring member on or after July 1, 2017, shall be subject to reduction under subsection (2) of this section. Compensation earned by the retiring member prior to July 1, 2017, shall not be subject to reduction under subsection (2) of this section.
  3. Subsections (2) and (3) of this section shall not apply to increases that are the direct result of a bona fide promotion or career advancement or to compensation used in accordance with KRS 61.680(7) in which the member does not have sixty (60) months of service in the Judicial Retirement Plan.
  4. The board of trustees shall determine whether increases in compensation during the final sixty (60) months preceding retirement constitute a bona fide promotion or career advancement and may promulgate administrative regulations in accordance with KRS Chapter 13A to administer this section. All state-administered retirement systems shall cooperate to implement this section.
  5. This section shall not apply to employees participating in the hybrid cash balance plan as provided by KRS 21.402 .

HISTORY: 2017 ch. 125, § 2, effective March 27, 2017; 2018 ch. 107, § 6, effective July 14, 2018; 2021 ch. 102, § 41, effective April 1, 2021.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

21.374. Election by member participating in the Legislators’ Retirement Plan or the Judicial Retirement Plan on or after September 1, 2008, but before January 1, 2014 — Participation in hybrid cash balance plan — Private letter ruling — Administrative regulations.

Notwithstanding KRS 6.500 to 6.577 and 21.345 to 21.580 :

  1. Subject to the provisions of this section, any member who began participating in the Legislators’ Retirement Plan or the Judicial Retirement Plan on or after September 1, 2008, but prior to January 1, 2014, may in lieu of the benefits he or she is currently eligible to receive under the plans, elect to receive the benefits and rights provided to members who began participating in the Legislators’ Retirement Plan or the Judicial Retirement Plan on or after January 1, 2014, including participating in the hybrid cash balance plan created pursuant to KRS 21.402 ;
  2. The election provided by this section shall be made in writing and on a form prescribed by the Judicial Form Retirement System board;
  3. For each member who makes an election provided by this section:
    1. Any service credit the member has accrued prior to January 1, 2014, shall be considered as service credit earned on or after January 1, 2014, for purposes of determining benefits under KRS 6.500 to 6.577 and 21.345 to 21.580 ;
    2. On the member’s effective election date, the value of the member’s accumulated contributions, less any interest, shall be deposited into the member’s hybrid cash balance account as provided by KRS 21.402 and considered part of the member’s accumulated account balance;
    3. On the member’s effective election date, an employer pay credit as provided by KRS 21.402 shall be added to the member’s accumulated account balance for each month the member contributed to the Legislators’ Retirement Plan or the Judicial Retirement Plan prior to his or her effective election date; and
    4. Interest credits as provided by KRS 21.402 shall only be applied for periods occurring on or after the member’s effective election date;
  4. Before accepting an election provided by this section, the Judicial Form Retirement System board shall provide the member with information detailing the potential results of the member’s election;
  5. An election made pursuant to this section shall be irrevocable; and
    1. A member of the Legislators’ Retirement Plan or the Judicial Retirement Plan shall not be eligible to make an election prescribed by this section until the Judicial Form Retirement System receives a favorable private letter ruling from the Internal Revenue Service regarding this section. (6) (a) A member of the Legislators’ Retirement Plan or the Judicial Retirement Plan shall not be eligible to make an election prescribed by this section until the Judicial Form Retirement System receives a favorable private letter ruling from the Internal Revenue Service regarding this section.
    2. If the Internal Revenue Service denies the request for a private letter ruling as provided by paragraph (a) of this subsection, this section shall be void.
    3. The Judicial Form Retirement System may promulgate administrative regulations under KRS Chapter 13A in order to carry out this section.

HISTORY: Repealed and reenacted by 2021 ch. 102, § 42, effective April 1, 2021.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

21.375. Vesting through combined service credit.

A person who does not have the amount of service required for service retirement in the Judicial Retirement Plan but who is a member of that plan, or is a former member who has service credit therein in accordance with subsection (2) or (3) of KRS 21.460 , shall become vested in the Judicial Retirement Plan for benefits attributable to the amount of his actual service credit therein if such service credit, when combined with service credit which he has in, or for which he is receiving benefits from, the Legislators’ Retirement Plan, the Kentucky Employees Retirement System, County Employees Retirement System, State Police Retirement System, or Teachers’ Retirement System, is equal to the amount of service required for service retirement.

History. Enact. Acts 1976, ch. 60, § 2; 1978, ch. 193, § 4, effective July 1, 1978; 1982, ch. 458, § 1, effective April 15, 1982.

Opinions of Attorney General.

Once an individual retires and begins to draw benefits from one or more of the state retirement systems and is thereafter elected or appointed to a position covered by the Judicial Retirement System he cannot count the service credit in those other state retirement systems toward vesting in the Judicial Retirement System. OAG 78-538 .

21.380. Normal retirement age.

  1. The normal retirement date or age of a member shall be his sixty-fifth birthday, except that the normal retirement age for a member who began participating in the Judicial Retirement Plan prior to January 1, 2014, shall be reduced by one (1) year, but no more than five (5) years total, for:
    1. Each five (5) years of service credit in the plan; and
    2. Each year of service credit the member has earned beyond that needed to receive a retirement benefit of one hundred percent (100%) of final compensation.
  2. KRS 21.350 to 21.480 do not require that a member retire at the normal retirement date.

History. Enact. Acts 1960, ch. 84, Art. III, § 4; 1962, ch. 9, § 5; 1994, ch. 266, § 5, effective July 15, 1994; 2013, ch. 120, § 22, effective July 1, 2013.

21.385. Payment of benefits while continuing in service — Options for member who began participating before January 1, 2014 — Multiple retirements by one person — Individual who retires on or after January 1, 2019, not eligible to earn benefits in Legislators’ Retirement Plan or Judicial Retirement Plan for service after that date. [Declared void — See LRC Note Below]

  1. In a situation in which, by reason of federal tax law, the failure to commence the payment of retirement benefits to a vested member of the Kentucky Judicial Retirement Plan, by a specified date after the member reaches a specified age, as designated by the federal tax law, will result in the imposition of a special excise tax, the member, without retiring, shall be entitled, as of the specified date, to commence drawing from the plan the monthly benefit he would have been entitled to had he retired on that date. Notwithstanding the provisions of KRS 21.360 and 61.680 , a member who began participating in the Judicial Retirement Plan prior to January 1, 2014, may, at his option, continue to be a participating member of the plan thereafter until he retires, or, may elect to cease to be a participating member of the plan, in which latter event he shall not be required to become a participating member of the Kentucky Employees Retirement System.
  2. A member drawing benefits from the Kentucky Judicial Retirement Plan pursuant to subsection (1) of this section who elects to continue as a participating member of the plan, or a person drawing benefits from the plan by reason of having retired, who by reason of reemployment again becomes a participating member of the plan, shall continue to draw the benefits until he retires, and accrue additional benefits, but in the calculation of the additional benefits only the years of service after he commenced drawing the initial benefits shall be counted, and the monthly additional benefit shall not exceed such amount as, when added to the initial monthly benefit, will equal the final compensation on which the additional benefit was calculated. The member’s surviving spouse, if married to the member at the time of his ultimate retirement, shall be considered to be the surviving spouse with respect to both the additional and the initial benefits.
  3. Notwithstanding any other provision of KRS 6.500 to 6.577 or 21.345 to 21.580 to the contrary, an individual who retires and begins drawing a retirement allowance from one (1) or more of the systems or plans administered by the Kentucky Retirement Systems, the Teachers’ Retirement System, or the Judicial Form Retirement System on or after January 1, 2019, shall not be eligible to earn benefits in the Legislators’ Retirement Plan or Judicial Retirement Plan for service as a judge, justice, or legislator that occurs on or after January 1, 2019.

History. Enact. Acts 1988, ch. 299, § 1, effective July 15, 1988; 2013, ch. 120, § 23, effective July 1, 2013; 2018 ch. 107, § 8, effective July 14, 2018.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

21.390. Retirement defined. [Transferred.]

Compiler’s Notes.

This section (Acts 1960, ch. 84, Art. III, § 5) was recompiled as subsec. (1) of KRS 21.345 .

21.400. Computation of retirement allowance for member who began participating before January 1, 2014 — Benefit reduction for early retirement.

  1. A member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who retires on or after his normal retirement date shall receive a service retirement allowance, payable monthly during his lifetime, in an amount per month equal to two and seventy-five hundredths percent (2.75%) of his final compensation multiplied by the number of years of his service, but in no event to exceed one hundred percent (100%) of final compensation, except that for any service performed while a member prior to July 1, 1978, any service prior to July 1, 1962, creditable under KRS 21.345 , and any service performed in continued membership (or allowable under KRS 21.410 or 21.420 ) after June 30, 1978, by a person who was a member on that date, the monthly percentage figure shall be five percent (5%) of his final compensation multiplied by the number of years of his service, and except that for any service performed by a member who elected membership at an annual accrual rate of four and fifteen one hundredths percent (4.15%) and for any service performed in continued membership thereafter (or allowable under KRS 21.410 to 21.420 ), the benefit, payable monthly during his lifetime shall be an amount equal to four and fifteen one-hundredths percent (4.15%) of his final compensation multiplied by the number of years of his service, and except that allowances heretofore granted, and rights related thereto, shall not be affected by the 1978 or 1980 amendments to this section. For this purpose, “final compensation” means the average monthly compensation of the member for the sixty (60) months of service immediately preceding his retirement, including, in the case of a Circuit Judge, compensation received as special commissioner of the former Court of Appeals. If, at the time of retirement or death of a member his total period of service in one or more positions covered by the system has not amounted to sixty (60) months, his “final compensation” shall be computed as if he had served in the first position he occupied under the system for such period of time as to bring his total service (in all positions) to sixty (60) months. If that category of position was not in existence for that period, it shall be treated as though it had been in existence for that period and as if the compensation paid for the presumed period of existence was at the rate provided for the category when it in fact first was created.
  2. A member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who retires before his normal retirement date shall be vested with the right to receive, when he reaches his normal retirement age, a service retirement allowance computed on the basis of the number of years of his actual service, and payable in accordance with:
    1. The provisions of subsection (1) of this section; or
    2. KRS 21.580 if the member retires as a Senior Status Special Judge while the pilot program created in KRS 21.580 is in effect.
  3. In lieu of the right provided for in subsection (2) of this section, a member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who retires before his normal retirement age may elect, at any time before reaching his normal retirement age, to be paid commencing as of the time of the election a monthly service retirement allowance equal in amount to the monthly allowance that would have become payable under subsection (2) of this section when he reached his normal retirement age, reduced at the rate of five percent (5%) for each year by which his actual age at the time the election is made is lower than the normal retirement age.
  4. A member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who retires before his normal retirement date when his benefit is based on twenty-seven (27) years or more of service in the Judicial Retirement Plan, or if his judicial service credit, when combined with service he has in, or for which he is receiving benefits from, the Legislators’ Retirement Plan, the Kentucky Employees Retirement System, County Employees Retirement System, State Police Retirement System, or the Teachers’ Retirement System, is equal to twenty-seven (27) years, shall be vested with the right to receive a service retirement allowance computed on the basis of the number of years of his actual service, and payable in accordance with:
    1. The provisions of subsection (1) of this section; or
    2. KRS 21.580 if the member retires as a Senior Status Special Judge while the pilot program created in KRS 21.580 is in effect.
  5. In lieu of the right provided for in subsection (2) of this section, a member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who retires before his normal retirement age may elect, at any time before reaching his normal retirement age, to be paid commencing as of the time of the election, a monthly service retirement allowance equal in amount to the monthly allowance that would have become payable under subsection (2) of this section when he reached normal retirement age, reduced at the rate of five percent (5%) for each year by which his years of service or combined service pursuant to subsection (4) of this section are lower than twenty-seven (27).
  6. Subsections (1) to (5) of this section shall not apply to members who begin participating in the Judicial Retirement Plan on or after January 1, 2014.

History. Enact. Acts 1960, ch. 84, Art. III, § 6; 1962, ch. 9, § 6, effective July 1, 1962; 1978, ch. 193, § 5, effective July 1, 1978; 1980, ch. 407, § 4, effective July 15, 1980; 1988, ch. 299, § 7, effective July 15, 1988; 1996, ch. 292, § 1, effective July 15, 1996; 2000, ch. 305, § 2, effective July 14, 2000; 2013, ch. 120, § 24, effective July 1, 2013.

Compiler’s Notes.

Section 3 of Acts 2000, ch. 305, effective July 14, 2000, read: “On the effective date of this Act [July 14, 2000], and annually thereafter the Judicial Retirement System shall provide a written report to the Legislative Research Commission and to the Chief Justice of the Kentucky Supreme Court containing: (1) Number of judges who have retired as Senior Status Special Judges since the effective date of the Act [July 14, 2000]; (2) Compensation and other benefits paid to those Senior Status Special Judges; (3) Number of days each Senior Status Special Judge has served as a special judge; (4) The fiscal impact on the judicial retirement system and the General Fund as a result of the retirement of the Senior Status Special Judges; and (5) Any other relevant information that may be requested.”

NOTES TO DECISIONS

1.Recoupment of Benefits Previously Paid.

The Board of Trustees of the Kentucky Judicial Form Retirement System was prohibited from deducting from retirement benefits, being drawn by retired judge, a sum representing benefits which had been previously paid to him during an earlier period of retirement since judges serve in Kentucky for terms to which they are elected, and their return to active service following a period of retirement is an easily foreseeable circumstance; therefore, if the Legislature had intended that benefits be recouped in that event, it could have so provided, but did not so provide. Cornett v. Board of Trustees, 764 S.W.2d 644, 1989 Ky. App. LEXIS 9 (Ky. Ct. App. 1989).

Research References and Practice Aids

Cross-References.

Legislators’ Retirement Plan, 6.500 to 6.535 .

Kentucky Employees Retirement System, KRS 61.510 to 61.705 .

County Employees Retirement System, KRS 78.510 to 78.852 .

Teachers’ Retirement System, KRS 161.220 to 161.716 , 161.990 .

21.402. Hybrid cash balance plan for certain members of Legislators’ Retirement Plan and Judicial Retirement Plan — Member contributions and employer pay credits — Interest credits — Termination of employment — Options upon retirement — Individual members’ accounts established by board of Judicial Form Retirement System. [Declared void — See LRC Note Below]

  1. A member of the Legislators’ Retirement Plan or the Judicial Retirement Plan, whose participation in the Legislators’ Retirement Plan or the Judicial Retirement Plan begins on or after January 1, 2014, shall receive the retirement benefits provided by this section in lieu of the retirement benefits provided under KRS 6.520 and 21.400 . The retirement benefit provided by this section shall be known as the hybrid cash balance plan and shall operate as another benefit tier within the Legislators’ Retirement Plan and the Judicial Retirement Plan.
  2. The hybrid cash balance plan shall provide a retirement benefit based upon the member’s accumulated account balance, which shall include:
    1. Contributions made by the member as provided by KRS 6.500 to 6.577 and 21.345 to 21.580 , except for employee contributions prescribed by KRS 6.505(1)(d)2.b. and 21.360(1)(a)3.b.;
    2. An employer pay credit of four percent (4%) of the creditable compensation earned by the employee for each month the employee is contributing to the hybrid cash balance plan provided by this section; and
    3. Interest credits added annually to the member’s accumulated account balance as provided by this section.
    1. Member contributions and employer pay credits as provided by subsection (2)(a) and (b) of this section shall be credited to the member’s account monthly as contributions are reported and posted to the plan. (3) (a) Member contributions and employer pay credits as provided by subsection (2)(a) and (b) of this section shall be credited to the member’s account monthly as contributions are reported and posted to the plan.
    2. Interest credits, as provided by subsection (2)(c) of this section, shall be credited to the member’s account annually on June 30 of each fiscal year, as determined by subsection (4) of this section.
    1. On June 30 of each fiscal year, the plan shall determine if the member contributed to the hybrid cash balance plan or another state-administered retirement system during the fiscal year. (4) (a) On June 30 of each fiscal year, the plan shall determine if the member contributed to the hybrid cash balance plan or another state-administered retirement system during the fiscal year.
    2. If the member contributed to the hybrid cash balance plan or another state-administered retirement system during the fiscal year, the interest credit added to the member’s account for that fiscal year shall be determined by multiplying the member’s accumulated account balance on June 30 of the preceding fiscal year by a percentage increase equal to eighty-five percent (85%) of the plan’s geometric average net investment return, but in no case shall be less than zero percent (0%).
    3. If the member did not contribute to the hybrid cash balance plan or another state-administered retirement system during the fiscal year, then no interest credit shall be added to the member’s account for that fiscal year.
    4. For purposes of this subsection, “plan’s geometric average net investment return”:
      1. Means the annual average geometric investment return, net of administrative and investment fees and expenses, over the last five (5) fiscal years as of the date the interest is credited to the member’s account; and
      2. Shall be expressed as a percentage and based upon the plan in which the member has an account.
    1. Upon termination of employment, a member who has less than five (5) years of service credited under the Legislators’ Retirement Plan or the Judicial Retirement Plan, who elects to take a refund of his or her accumulated account balance as provided by KRS 21.460 , shall forfeit the accumulated employer credit, and shall only receive a refund of his or her accumulated contributions. (5) (a) Upon termination of employment, a member who has less than five (5) years of service credited under the Legislators’ Retirement Plan or the Judicial Retirement Plan, who elects to take a refund of his or her accumulated account balance as provided by KRS 21.460 , shall forfeit the accumulated employer credit, and shall only receive a refund of his or her accumulated contributions.
    2. Upon termination of employment, a member who has five (5) or more years of service credited under the Legislators’ Retirement Plan or the Judicial Retirement Plan, who elects to take a refund of his or her accumulated account balance as provided by KRS 21.460, shall receive a full refund of his or her accumulated account balance.
  3. A member participating in the hybrid cash balance plan provided by this section may retire:
    1. Upon reaching normal retirement age, provided he or she has earned five (5) or more years of service credited under the Legislators’ Retirement Plan or the Judicial Retirement Plan, or another state-administered retirement system; or
    2. If the member is at least age fifty-seven (57) and has an age and years of service total of at least eighty-seven (87) years. The years of service used to determine eligibility for retirement under this paragraph shall only include years of service credited under the Legislators’ Retirement Plan or the Judicial Retirement Plan, or another state-administered retirement system.
  4. A member eligible to retire under subsection (6) of this section may elect to:
    1. Receive a monthly retirement allowance payable for life by having his or her accumulated account balance annuitized by the retirement plan in accordance with the actuarial assumptions and actuarial methods adopted by the board and in effect on the member’s retirement date;
    2. Receive the actuarial equivalent of his or her retirement allowance calculated under paragraph (a) of this subsection payable under one (1) of the options set forth in KRS 21.420(8)(b); or
    3. Take a refund of his or her accumulated account balance as provided by KRS 21.460 .
  5. The board of the Judicial Form Retirement System shall establish individual members’ accounts for each member participating in the hybrid cash balance plan as provided by this section. The Judicial Form Retirement System may promulgate administrative regulations in accordance with KRS Chapter 13A to administer the provisions of this section.
  6. The provisions of this section shall not apply to members who began participating in the Legislators’ Retirement Plan or the Judicial Retirement Plan prior to January 1, 2014.

HISTORY: Enact. Acts 2013, ch. 120, § 12, effective July 1, 2013; 2016 ch. 12, § 5, effective July 15, 2016; 2017 ch. 125, § 5, effective March 27, 2017; 2018 ch. 107, § 9, effective July 14, 2018.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

21.405. Increase of retirement benefits.

  1. As of July 1, 1982, the board of trustees of the Kentucky Judicial Form Retirement System shall recompute the monthly benefits of persons then receiving benefits under the Judicial Retirement Plan, provided the person began participating in the plan prior to January 1, 2014, by using the same service credit rate and the same number of years of service that were used in computing the benefits then being received but substituting, in lieu of the “final compensation” that was used in the computation of the benefit then being received an amount equal to fifty-five percent (55%) of the final compensation of the office in which the credit was earned for a person retiring as of June 30, 1982.
  2. As of July 1, 1983, and as of July 1 of each year thereafter, the board of trustees of the Kentucky Judicial Form Retirement System shall recompute the monthly benefits of persons then receiving benefits under the Judicial Retirement Plan, provided the person began participating in the plan prior to January 1, 2014, by using the following formula: two and three-fourths percent (2.75%) times fifty-five percent (55%) of the final compensation of the office in which the retirement credit was earned for a person retiring as of the recomputation date, times the number of years of service credit (not to exceed thirty-six (36) years).
  3. In making the recomputations provided for in subsections (1) and (2) of this section for members who began participating in the plan prior to January 1, 2014, the same reduction factor, in case of an actuarially reduced benefit or a surviving spouse’s benefit, shall be used as was used in determining the benefit then being received. If the benefit as recomputed in accordance with subsection (1) or (2) of this section is higher than the benefit then being received, the recomputed benefit shall thereafter be paid monthly, commencing as of the date specified for the recomputation, subject to future adjustment at ensuing annual recomputations in accordance with subsection (2) of this section. For the purposes of this section, the following office equivalents shall be used: Judge of former Court of Appeals - Justice of Supreme Court; any position other than judge or justice that was covered by the Judicial Retirement System - Judge of the present Court of Appeals.
  4. Effective August 1, 1998, to July 1, 2008, a recipient of a monthly pension benefit from the Kentucky Judicial Retirement Plan who began participating in the plan prior to January 1, 2014, shall have his or her benefit increased on July 1 of each year by the percentage increase in the annual average of the consumer price index for all urban consumers for the most recent calendar year as published by the Federal Bureau of Labor Statistics, not to exceed five percent (5%). In determining the state’s appropriation to the Judicial Retirement Fund, only the costs of increases granted as of the most recent valuation date shall be recognized. The benefits of this subsection as provided on August 1, 1998, to July 1, 2008, shall not be considered as benefits protected by the inviolable contract provisions of KRS 21.480 . The General Assembly reserves the right to suspend or reduce the benefits conferred in this subsection if in its judgment the welfare of the Commonwealth so demands.
    1. Effective July 1, 2009, and on July 1 of each year thereafter, a recipient of a monthly pension benefit from the Kentucky Judicial Retirement Plan shall have his or her benefit increased by one and one-half percent (1.5%), if: (5) (a) Effective July 1, 2009, and on July 1 of each year thereafter, a recipient of a monthly pension benefit from the Kentucky Judicial Retirement Plan shall have his or her benefit increased by one and one-half percent (1.5%), if:
      1. The funding level of the plan is greater than one hundred percent (100%) and subsequent legislation authorizes the use of any surplus actuarial assets to provide an increase in retirement allowances described by this subsection; or
      2. The General Assembly appropriates sufficient funds to fully prefund the increase described by this subsection in the year the increase is provided.
    2. The board of trustees of the Kentucky Judicial Form Retirement System shall, at least thirty (30) days prior to the beginning of regular sessions of the General Assembly held in even-numbered years, advise the General Assembly of the following:
      1. Whether the plan has a funding level greater than one hundred percent (100%) and if the plan can support an increase in recipients’ retirement allowances as provided by paragraph (a) of this subsection over the next budget biennium without reducing the funding level of the plan below one hundred percent (100%); and
      2. If no surplus actuarial assets are available, the level of funds needed to fully prefund an increase for plan recipients over the next budget biennium if a one and one-half percent (1.5%) increase is provided annually over the biennium.
    3. For purposes of this subsection, “funding level” means the actuarial value of assets divided by the actuarially accrued liability expressed as a percentage that is determined and reported by the plan’s actuary in the plan’s actuarial valuation.
    4. The full increase described by this subsection shall only be provided if the recipient has been receiving a benefit for at least twelve (12) months prior to the effective date of the increase. If the recipient has been receiving a benefit for less than (12) months prior to the effective date of the increase provided by this subsection, the increase shall be reduced on a pro rata basis for each month the recipient has not been receiving benefits in the twelve (12) months preceding the effective date of the increase.
    5. In determining the state’s appropriation to the Judicial Retirement Fund, only the costs of increases granted as of the most recent valuation date shall be recognized.
    6. The benefits of this subsection as provided on July 1, 2009, and thereafter shall not be considered as benefits protected by the inviolable contract provisions of KRS 21.480 . The General Assembly reserves the right to suspend or reduce the benefits conferred in this subsection if in its judgment the welfare of the Commonwealth so demands.
  5. In addition to the increase to a recipient’s retirement allowance as provided by subsection (5) of this section, the General Assembly may, by subsequent legislation, provide supplemental increases to a recipient’s retirement allowance to help adjust for actual changes in the recipient’s cost of living if the General Assembly appropriates sufficient funds to fully prefund the benefit in the year the increase is provided.

History. Enact. Acts 1982, ch. 380, § 1, effective July 15, 1982; 1984, ch. 111, § 26, effective July 13, 1984; 1998, ch. 360, § 1, effective July 15, 1998; 2008 (1st Ex. Sess.), ch. 1, § 4, effective June 27, 2008; 2013, ch. 120, § 25, effective July 1, 2013; 2016 ch. 12, § 6, effective July 15, 2016.

Legislative Research Commission Notes.

(7/1/2013). This statute was amended by Section 25 of 2013 Ky. Acts ch. 120. Section 81 of that Act reads, “Notwithstanding any other provision of this Act to the contrary, the amendments in Sections 16, 25, and 69 of this Act shall in no way nullify the provisions of 2012 Ky. Acts ch. 19, Part I, 1.(4), 2012 Ky. Acts ch. 68, Part I, 2.(2), or 2012 Ky. Acts ch. 144, Part IV, 10., which suspended the cost-of-living adjustment that would have been provided to retirees and beneficiaries of the Legislative Retirement Plan, the Judicial Retirement Plan, the State Police Retirement System, the Kentucky Employees Retirement System, and the County Employees Retirement System on July 1, 2012, and July 1, 2013.”

Research References and Practice Aids

2020-2022 Budget Reference.

See Judicial Branch Budget, 2021 Ky. Acts ch. 170, Pt. I, A, 2, (3) at 1168.

21.410. Disability retirement — Computation.

    1. If upon examination of a member under his normal retirement age by one (1) or more qualified physicians employed by the retirement board, it is certified to the satisfaction of the board that such member is so physically or mentally disabled as to be incapacitated for further performance of duty, and that such incapacity is likely to be permanent, the member may retire for disability. (1) (a) If upon examination of a member under his normal retirement age by one (1) or more qualified physicians employed by the retirement board, it is certified to the satisfaction of the board that such member is so physically or mentally disabled as to be incapacitated for further performance of duty, and that such incapacity is likely to be permanent, the member may retire for disability.
      1. A member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who retires for disability as provided by this subsection shall be entitled to receive commencing immediately a disability retirement allowance, payable monthly during his disability, in an amount equal to one-half (1/2) of the monthly service retirement allowance he would have received commencing at his normal retirement date if he had continued in service until that date and had then retired, computed however on the basis of his final compensation at time of actual retirement. (b) 1. A member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who retires for disability as provided by this subsection shall be entitled to receive commencing immediately a disability retirement allowance, payable monthly during his disability, in an amount equal to one-half (1/2) of the monthly service retirement allowance he would have received commencing at his normal retirement date if he had continued in service until that date and had then retired, computed however on the basis of his final compensation at time of actual retirement.
      2. A member who begins participating in the Judicial Retirement Plan on or after January 1, 2014, who retires for disability as provided by this subsection shall be entitled to a disability retirement allowance equal to the higher of twenty percent (20%) of the member’s monthly official salary or the retirement allowance determined in the same manner as for retirement at his or her normal retirement date under KRS 21.402 .
      3. A member who begins participating in the Legislators’ Retirement Plan on or after January 1, 2014, who retires for disability as provided by this subsection shall be entitled to a disability retirement allowance equal to the higher of twenty percent (20%) of the member’s monthly creditable compensation or the retirement allowance determined in the same manner as for retirement at his or her normal retirement date under KRS 21.402 .
    1. A member who began participating in the Judicial Retirement Plan prior to January 1, 2014, need not have completed eight (8) years of service in order to be eligible for benefits under subsection (1) of this section. (2) (a) A member who began participating in the Judicial Retirement Plan prior to January 1, 2014, need not have completed eight (8) years of service in order to be eligible for benefits under subsection (1) of this section.
    2. A member who begins participating in the Judicial Retirement Plan on or after January 1, 2014, must have completed at least five (5) years of service in order to apply and be eligible for the disability benefits provided by this section.
  1. The retirement board shall cause a member who has been retired for disability and who is still under his normal retirement age to undergo periodic examination by one (1) or more qualified physicians employed by the board, to determine whether he continues to be incapacitated for service of the character required of a judge or commissioner. If upon any such examination it is certified to the satisfaction of the board that the member is no longer so incapacitated, or if the member refuses to submit to examination, the board shall terminate his disability retirement allowance. He shall then be entitled to such rights, if any, under subsection (2) or (3) of KRS 21.400 or under KRS 21.402 as he would have been entitled to had he voluntarily retired on the date he was retired for disability.
  2. Upon reaching his normal retirement age, a member who began participating in the plan prior to January 1, 2014, and who has been receiving a disability retirement allowance may apply for and receive, in lieu thereof, the service retirement allowance he would have been entitled to receive at normal retirement age had he voluntarily retired on the date he was retired for disability.

HISTORY: Enact. Acts 1960, ch. 84, Art. III, § 7; 2013, ch. 120, § 26, effective July 1, 2013; 2016 ch. 12, § 7, effective July 15, 2016.

Opinions of Attorney General.

Where a Circuit Judge suffered a severe stroke just seven days before his term in office ended, the Judicial Retirement System could grant the judge disability retirement pursuant to this section, even though the medical certification and the subsequent determination to grant disability benefits were made after the date when the judge left office. OAG 76-199 .

21.415. Disability retirement benefits.

Retirement benefits for a Justice of the Supreme Court, Judge of the Court of Appeals, Circuit Judge, or District Judge retired for disability under Section 121 of the Constitution of Kentucky shall be in accordance with KRS 21.410 . The Judicial Retirement Board, in the case of such a retirement, shall exercise no function with respect to determining the existence or continuance of disability.

History. Enact. Acts 1976, ch. 60, § 3; 1978, ch. 193, § 6, effective July 1, 1978.

21.420. Death benefits for members — Designation of beneficiary to receive accumulated contributions or accumulated account balance.

  1. After the death of a member who began participating in the Judicial Retirement Plan prior to January 1, 2014, who at the time of his death was receiving a service retirement allowance (other than an actuarially reduced allowance under subsection (3) of KRS 21.400 ), or was receiving a disability retirement allowance, his surviving spouse is entitled to receive during his lifetime a monthly allowance equal to one-half (1/2) of that he was receiving.
    1. If a member who began participating in the Judicial Retirement Plan prior to January 1, 2014, dies before retirement and before reaching normal retirement age, without regard to length of service, his surviving spouse is entitled to receive during his lifetime a monthly allowance equal to one-half (1/2) of the monthly allowance the member would have received commencing at his normal retirement date if he had continued in service until that date and had then retired, computed however on the basis of his final compensation at time of death. (2) (a) If a member who began participating in the Judicial Retirement Plan prior to January 1, 2014, dies before retirement and before reaching normal retirement age, without regard to length of service, his surviving spouse is entitled to receive during his lifetime a monthly allowance equal to one-half (1/2) of the monthly allowance the member would have received commencing at his normal retirement date if he had continued in service until that date and had then retired, computed however on the basis of his final compensation at time of death.
    2. If a member who began participating in the Judicial Retirement Plan prior to January 1, 2014, dies before retirement and after reaching normal retirement age, his surviving spouse is entitled to receive during his lifetime a monthly allowance equal to one-half (1/2) of the monthly allowance the member would have been entitled to, on the basis of his years of service, had he retired on the date of his death.
  2. If a member who began participating in the Judicial Retirement Plan prior to January 1, 2014, dies after retirement and was at the time of his death receiving an actuarially reduced allowance under subsection (3) of KRS 21.400 , or was not at the time of his death receiving a retirement allowance but had acquired the vested right under subsection (2) of KRS 21.400 to have received an allowance upon reaching normal retirement age, his surviving spouse is entitled to receive during his lifetime a monthly allowance equal to one-half (1/2) of the monthly allowance the member would have received when he reached normal retirement age.
  3. A member, or a retiree who began participating in the plan prior to January 1, 2014, who has not commenced drawing retirement benefits pursuant to KRS 21.400 , and who dies without a spouse or eligible children entitled to survivor’s benefits, may designate a beneficiary who shall receive the accumulated contributions of the member. A member, or a retiree who began participating in the plan on or after January 1, 2014, who has not commenced drawing retirement benefits pursuant to KRS 21.402 , who dies without a spouse or eligible children entitled to survivor’s benefits, may designate a beneficiary who shall receive the accumulated account balance of the member. Absent a designation by the member or retiree, the accumulated contributions or accumulated account balance, as applicable based upon the member’s participation date, shall be paid to the member’s estate.
  4. A member who began participating in the plan prior to January 1, 2014, who commences drawing retirement benefits pursuant to KRS 21.400 or 21.410 , and who dies without a spouse or eligible children entitled to survivor’s benefits and before the benefits received by the member equal the accumulated contributions of the member, may designate a beneficiary who shall receive the balance of the accumulated contributions of the member. A member who began participating in the plan on or after January 1, 2014, who commences drawing retirement benefits pursuant to KRS 21.402 or 21.410 , and who dies without a spouse or eligible children entitled to survivor’s benefits and before the benefits received by the member equal the accumulated account balance of the member, may designate a beneficiary who shall receive the balance of the accumulated account balance of the member. Any benefits received shall be deducted from the accumulated contributions or accumulated account balance. Absent a designation by the member, the balance of the accumulated contributions or accumulated account balance, as applicable based upon the member’s participation date, shall be paid to the member’s estate.
  5. A member who begins participating in the Judicial Retirement Plan prior to January 1, 2014, may designate a beneficiary who shall receive the balance of the accumulated contributions of the member, in the event survivor’s benefits are being paid pursuant to subsection (1), (2), or (3) of this section, and the survivor dies prior to receiving benefits equal to the member’s contributions. In this event, the provisions of subsection (5) of this section shall apply as to offset and payment.
  6. A member who begins participating in the Judicial Retirement Plan prior to January 1, 2014, may, prior to the drawing of benefits, elect in writing to the executive secretary of the Judicial Form Retirement System, to take an optional retirement allowance which shall be actuarially equivalent to the amount of retirement allowance otherwise payable to the member and the member’s spouse. If the member dies after retirement, the option chosen shall prevail over the provisions of subsections (1) and (3) of this section. If the member dies prior to retirement, the option chosen shall prevail over the provisions of subsection (2) of this section. The options shall include:
    1. Survivorship one hundred percent (100%). The member may elect to receive a decreased retirement allowance during the member’s lifetime and have the retirement allowance continued after death to the spouse during the lifetime of the spouse.
    2. Survivorship sixty-six and two-thirds percent (66 2/3%). The member may elect to receive a decreased retirement allowance during the member’s lifetime and have two-thirds (2/3) of the retirement allowance continue after death to the spouse during the lifetime of the spouse.

      If a retiree, living or deceased, chose either of the optional retirement benefit allowances specified in paragraphs (a) or (b) of this subsection from July 15, 1994, to July 15, 1998, the optional allowance shall be adjusted accordingly, and the new benefit shall commence August 1, 1998. Each recipient of benefits from the plan, who retired from July 15, 1994, to July 15, 1998, shall have a one-time opportunity to select an optional retirement allowance. The election by the recipient shall be prior to August 1, 1998, at which time the new benefit shall commence. The option chosen shall prevail, subsections (1), (2), and (3) of this section notwithstanding.

  7. For a member who begins participating in the Judicial Retirement Plan on or after January 1, 2014:
    1. If the member dies prior to drawing a retirement allowance, then the surviving spouse may elect to:
      1. Take a refund of the member’s accumulated account balance or accumulated contributions as provided by KRS 21.402 ; or
      2. If the member had at least five (5) years of service in the plan at the time of his or her death, have the member’s accumulated account balance annuitized into a monthly benefit payable for life that is equal to the benefit that would have been paid had the member retired immediately prior to his or her date of death and elected to receive benefits payable under the survivorship one hundred percent (100%) option as provided by paragraph (b)1. of this subsection. In lieu of the benefits provided by this paragraph to the surviving spouse, the member may elect to have the benefits payable under this paragraph paid to an individual dependent child by completing the forms provided prescribed by the Judicial Form Retirement System. If no surviving spouse or dependent children are eligible to receive benefits, then the provisions of subsection (4) of this section shall apply to the member.
    2. If a member dies on or after the date the member begins drawing a retirement allowance, the benefits payable to the surviving spouse shall be based upon whether or not the member elects prior to retirement to receive an optional retirement allowance. The election shall be in writing on the forms prescribed by the Judicial Form Retirement System and shall be actuarially equivalent to the amount of retirement allowance otherwise payable to the member. The optional retirement allowances shall include:
      1. Survivorship one hundred percent (100%). The member may elect to receive a decreased retirement allowance during the member’s lifetime and have the retirement allowance continued after death to the spouse during the lifetime of the spouse;
      2. Survivorship sixty-six and two-thirds percent (66-2/3%). The member may elect to receive a decreased retirement allowance during the member’s lifetime and have two-thirds (2/3) of the retirement allowance continue after death to the spouse during the lifetime of the spouse; or
      3. Survivorship fifty percent (50%). The member may elect to receive a decreased retirement allowance during the member’s lifetime and have one-half (1/2) of the retirement allowance continue after death to the spouse during the lifetime of the spouse. In lieu of the benefits provided by this paragraph to the surviving spouse, the member may elect prior to retirement to have the benefits payable under this paragraph paid to an individual dependent child by completing the forms provided by the Judicial Form Retirement System. If no surviving spouse or dependent children are eligible to receive benefits, then the provisions of subsection (5) of this section shall apply to the member.
    3. For purposes of this section a “dependent child” shall mean a child who is less than twenty-one (21) years of age or a disabled child who is eligible for Social Security disability benefits.

History. Enact. Acts 1960, ch. 84, Art. III, § 8; 1974, ch. 386, § 3; 1994, ch. 266, § 4, effective July 15, 1994; 1998, ch. 389, § 1, effective July 15, 1998; 2013, ch. 120, § 27, effective July 1, 2013; 2016 ch. 12, § 8, effective July 15, 2016.

21.425. Benefits to surviving or disabled children of members who began participating before January 1, 2014 — Designation of beneficiaries.

  1. In any circumstances in which a surviving spouse would be entitled to any allowance under KRS 21.420 , but there is no surviving spouse or the surviving spouse subsequently dies, and there is a surviving child or children of the member under the age of twenty-one (21), or there is a disabled child or children, the monthly allowance that the surviving spouse would have received or was receiving shall be continued, as follows:
    1. If the member does not have a disabled child or children, the benefit shall continue until there are no children remaining under the age of twenty-one (21); or
    2. If the member has a disabled child or children, the benefit shall continue until the death of the last remaining disabled child.
  2. A member may designate his child or children under the age of twenty-one (21), or his disabled child or children, to receive the death benefit payable under KRS 21.420 instead of his spouse, or he may designate that his spouse shall receive a percentage of the death benefit, and his child or children under the age of twenty-one (21), or his disabled child or children, shall receive the remainder. The member making such a choice shall designate his beneficiary or beneficiaries in writing to the manager of the Judicial Form Retirement System on a form provided by the manager.
  3. For purposes of this section, “disabled” means an individual determined by the Social Security Administration to be entitled to total disability benefits.
  4. Subsections (1) to (3) of this section shall not apply to a member who begins participating in the Judicial Retirement Plan on or after January 1, 2014.

History. Enact. Acts 1972, ch. 306, § 1; 1974, ch. 232, § 1; 1974, ch. 386, § 4; 1982, ch. 458, § 10, effective April 15, 1982; 1998, ch. 389, § 2, effective July 15, 1998; 2002, ch. 327, § 1, effective July 15, 2002; 2013, ch. 120, § 28, effective July 1, 2013.

21.427. Health insurance and benefits for recipients — Premium reimbursement plan — Coordination with all state-administered retirement systems or plans.

    1. The board of trustees of the Judicial Form Retirement System shall arrange by appropriate contract or on a self-insured basis for a group hospital and medical insurance plan for recipients of a retirement allowance from the Judicial Retirement Plan, and their dependents. For recipients, or dependents, eligible for Medicare coverage, the board shall provide Medicare supplement hospital and medical insurance coverage. For recipients, or dependents, not eligible for Medicare coverage, the board shall provide hospital and medical insurance coverage comparable to that provided under the major state employees’ group insurance, and the board may arrange for the recipients to be included in the major state employees group. For recipients of a retirement allowance who are not eligible for the same level of hospital and medical benefits as recipients living in Kentucky, the board shall provide a medical insurance premium reimbursement plan as described in subsection (3) of this section. (1) (a) The board of trustees of the Judicial Form Retirement System shall arrange by appropriate contract or on a self-insured basis for a group hospital and medical insurance plan for recipients of a retirement allowance from the Judicial Retirement Plan, and their dependents. For recipients, or dependents, eligible for Medicare coverage, the board shall provide Medicare supplement hospital and medical insurance coverage. For recipients, or dependents, not eligible for Medicare coverage, the board shall provide hospital and medical insurance coverage comparable to that provided under the major state employees’ group insurance, and the board may arrange for the recipients to be included in the major state employees group. For recipients of a retirement allowance who are not eligible for the same level of hospital and medical benefits as recipients living in Kentucky, the board shall provide a medical insurance premium reimbursement plan as described in subsection (3) of this section.
    2. For the purpose of this section, the “dependent” of a recipient means the spouse or minor children, or both, of a recipient who is a living former member of the Judicial Retirement Plan, or the minor children of a deceased former member whose surviving spouse is the recipient.
    1. Depending upon the number of months of service credit upon which the retirement allowance was based, and upon there having been at least forty-eight (48) months of judicial service, all or a portion of the premium required to provide hospital and medical benefits under this section shall be paid from the judicial retirement fund, as follows: (2) (a) Depending upon the number of months of service credit upon which the retirement allowance was based, and upon there having been at least forty-eight (48) months of judicial service, all or a portion of the premium required to provide hospital and medical benefits under this section shall be paid from the judicial retirement fund, as follows:
    2. For members who begin participating in the Judicial Retirement Plan on or after January 1, 2014:
      1. Participation in the health insurance coverage and benefits provided under this section shall not be allowed until the member has earned at least one hundred eighty (180) months of service credited under KRS 21.345 to 21.580 or another state-administered retirement system.
      2. A member who meets the minimum service requirements as provided by subparagraph 1. of this paragraph shall be eligible for a monthly insurance benefit upon retirement of ten dollars ($10) for each year of service as a participating member of the Judicial Retirement Plan.
      3. The minimum service required to participate in benefits as provided by subparagraph 1. of this subparagraph shall be waived for a member who is disabled in the line of duty as defined in KRS 61.621 , and the member shall be entitled to the health benefits payable under this subsection as though the member has twenty (20) years of service in the Judicial Retirement Plan.
      4. The minimum service required to participate in benefits as provided by subparagraph 1. of this subparagraph shall be waived for a member who is killed in the line of duty as described in KRS 61.621 , and the member’s spouse and eligible dependents shall be entitled to the health benefits the member would have received if he or she had retired with twenty (20) years of service in the Judicial Retirement Plan.
      5. The monthly insurance benefit amount provided by this paragraph shall be increased July 1 of each year by one and one-half percent (1.5%). The increase shall be cumulative and shall continue to accrue after the member’s retirement for as long as a monthly insurance benefit is payable to the retired member.
      6. Under no circumstances shall the cost of coverage be paid for the spouse, dependents, or beneficiaries of a member who began participating in the Judicial Retirement Plan on or after January 1, 2014, except as provided by subparagraph 4. of this paragraph.
    3. The health insurance payments provided by this subsection shall be made by the fund only if the recipient agrees to pay the remaining, if any, amount of the premium by deduction from his retirement allowance or by another method equally insuring the payment by him.
    4. Notwithstanding any other statute to the contrary, any member with the minimum number of months of judicial service required by paragraph (a) or (b) of this subsection who is also eligible for benefits, or who is receiving benefits from any retirement plan or system administered by the Commonwealth shall be entitled to hospital and medical benefits as described in paragraph (a) of this subsection except that the number of months of service credit used in calculating the level of benefits shall be the sum of service credited to the member in all the state-administered retirement systems or plans.
      1. Upon request of the member, the Judicial Retirement System shall compute the member’s combined service in all the state-administered retirement systems or plans and calculate the portion of the member’s premium to be paid by the Judicial Retirement Plan, according to the criteria established in paragraph (a) of this subsection. For members who begin participating in the Judicial Retirement Plan prior to January 1, 2014, the state-administered retirement systems or plans shall pay to the Judicial Retirement Plan the applicable percentage of the plan’s cost of the retiree’s hospital and medical premium which shall be equal to the percentage of the member’s number of months of service in the applicable state-administered retirement systems or plans divided by his total combined service. The amounts paid by all the state-administered retirement systems or plans shall not be more than one hundred percent (100%) of the premium amount adopted by the respective boards of trustees.
      2. A member who elects hospital and medical benefits under this subsection shall lose any claim to insurance benefits under any of the other state-administered retirement systems or plans.
    Click to view This paragraph shall not apply to members who begin participating in the Judicial Retirement Plan on or after January 1, 2014.
  1. The board shall establish a medical insurance premium reimbursement plan for recipients of a retirement allowance who are not eligible for the same level of hospital and medical benefits as recipients living in Kentucky having the same Medicare hospital and medical insurance eligibility status. An eligible recipient shall file proof of payment for hospital and medical insurance premiums at the retirement office. Reimbursement to eligible recipients shall be made on a quarterly basis. The recipient shall be eligible for reimbursement of substantiated medical insurance premiums for an amount not to exceed the total monthly contribution determined by the board of trustees. The plan shall not be made available if all recipients are eligible for the same level of coverage as recipients living in Kentucky.
  2. Premiums paid for hospital and medical insurance procured under this section shall be exempt from any premium tax which might otherwise be required under KRS Chapter 136. The payment of premiums by the judicial retirement fund shall not constitute income to the recipient. No commission shall be paid for hospital and medical insurance procured under this section.

Months of Judicial Service Percentage of Premium 240 or more 100% 180 to 239, inclusive 75% 120 to 179, inclusive 50% 48 to 119, inclusive 25%

History. Enact. Acts 1988, ch. 299, § 6, effective July 15, 1988; 1996, ch. 167, § 30, effective July 15, 1996; 1998, ch. 389, § 3, effective July 15, 1998; 2000, ch. 448, § 1, effective July 14, 2000; 2013, ch. 120, § 29, effective July 1, 2013; 2016 ch. 12, § 9, effective July 15, 2016.

21.430. Judicial retirement board. [Repealed.]

Compiler’s Notes.

This section (Acts 1960, ch. 84, Art. III, § 9; 1962, ch. 9, § 7; 1976, ch. 60, § 4) was repealed by Acts 1980, ch. 407, § 23, effective July 1, 1980. For present law see KRS 21.530 .

21.440. Duties of investment committee — Duties of board — Actuarial valuations, investigations, and analyses — Audit.

    1. The investment committee for the judicial retirement fund shall at least once in every two (2) year period procure an actuarial valuation of the judicial retirement fund. The valuation shall, at a minimum, include: (1) (a) The investment committee for the judicial retirement fund shall at least once in every two (2) year period procure an actuarial valuation of the judicial retirement fund. The valuation shall, at a minimum, include:
      1. A description of the actuarial assumptions used in the actuarial valuation, which shall be reasonably related to the experience of the fund and represent the actuary’s best estimate of anticipated experience;
      2. A description of any funding methods utilized or required by state law in the development of the actuarial valuation results;
      3. A description of any changes in actuarial assumptions and methods from the previous year’s actuarial valuation;
      4. The actuarially recommended contribution rate for employers for the upcoming budget periods;
      5. A thirty (30) year projection of the funding levels, unfunded liabilities, and actuarially recommended contribution rates for employers based upon the actuarial assumptions, funding methods, and experience of the system as of the valuation date; and
      6. A sensitivity analysis that evaluates the impact of changes in plan assumptions, including but not limited to the investment return assumption, payroll growth assumption, and medical inflation assumptions, on employer contribution rates, funding levels, and unfunded liabilities.
    2. At least once in each five (5) year period, the board of trustees of the Judicial Form Retirement System shall cause an actuarial investigation to be made of all the relevant experience under the retirement plan relative to the actuarial assumptions and funding methods previously adopted by the board. The actuarial investigation shall include at a minimum a summary of the changes in actuarial assumptions and funding methods recommended in the investigation and the projected impact of the recommended changes on funding levels, unfunded liabilities, and actuarially recommended contribution rates for employers over a thirty (30) year period.
    3. Pursuant to the investigation, the board shall from time to time revise the actuarial tables previously adopted by the board and shall thereupon revise the bases of the rates of contributions required under KRS 21.345 to 21.580 .
    4. For any change in actuarial assumptions, funding methods, retiree health insurance premiums and subsidies, or any other decisions made by the board that impact system liabilities and actuarially recommended contribution rates for employers and that are not made in conjunction with the actuarial investigation required by paragraph (b) of this subsection, an actuarial analysis shall be completed showing the projected impact of the changes on funding levels, unfunded liabilities, and actuarially recommended contribution rates for employers over a thirty (30) year period.
    5. A copy of the valuation, the five (5) year actuarial investigation, and any analysis required by this subsection shall be forwarded electronically to the Legislative Research Commission within ten (10) days of receipt by the committee, and the Legislative Research Commission shall distribute the information received to the committee staff and co-chairs of any committee that has jurisdiction over the Judicial Form Retirement System. The actuarial valuation required by paragraph (a) of this subsection shall be submitted no later than November 15 following the close of the fiscal year.
    6. All the investigations and valuations shall be certified to the board by an actuary who shall be a fellow of the Conference of Consulting Actuaries or a member of the American Academy of Actuaries.
    1. The board of trustees of the Judicial Form Retirement System shall annually procure an audit of the system and each of the funds therein. The audit shall be conducted in accordance with generally accepted auditing standards. Except as provided by paragraph (b) of this subsection, the board may select an independent certified public accountant or the Auditor of Public Accounts to perform the audit. If the audit is performed by an independent certified public accountant, the Auditor of Public Accounts shall not be required to perform an audit pursuant to KRS 43.050(2)(a), but may perform an audit at his discretion. The board shall make copies of the audit required by this section available for examination by any member or beneficiary in the office of the manager of the system and in such other places as may be necessary to make the audit available to all members and beneficiaries. A copy of the audit shall be sent to the Legislative Research Commission within ten (10) days of receipt by the committee. (2) (a) The board of trustees of the Judicial Form Retirement System shall annually procure an audit of the system and each of the funds therein. The audit shall be conducted in accordance with generally accepted auditing standards. Except as provided by paragraph (b) of this subsection, the board may select an independent certified public accountant or the Auditor of Public Accounts to perform the audit. If the audit is performed by an independent certified public accountant, the Auditor of Public Accounts shall not be required to perform an audit pursuant to KRS 43.050(2)(a), but may perform an audit at his discretion. The board shall make copies of the audit required by this section available for examination by any member or beneficiary in the office of the manager of the system and in such other places as may be necessary to make the audit available to all members and beneficiaries. A copy of the audit shall be sent to the Legislative Research Commission within ten (10) days of receipt by the committee.
    2. Once every five (5) years, the Auditor of Public Accounts shall perform the audit described by this subsection, and the system shall reimburse the Auditor of Public Accounts for all costs of the audit. The Auditor of Public Accounts shall determine which fiscal year during the five (5) year period the audit prescribed by this paragraph will be completed.

History. Enact. Acts 1960, ch. 84, Art. III, § 10; 1980, ch. 246, § 2, effective July 15, 1980; 1984, ch. 111, § 27, effective July 13, 1984; 1990, ch. 489, § 13, effective July 13, 1990; 2012, ch. 75, § 4, effective April 11, 2012; 2016 ch. 133, § 4, effective July 15, 2016; 2021 ch. 64, § 2, effective June 29, 2021.

21.450. Funding of benefits — Trustee — Duties of board or investment adviser — Accrual of benefits.

  1. The benefits provided by KRS 21.350 to 21.510 to be paid shall be funded through contract with a reputable life insurance company authorized to do business in this state, or through investment and reinvestment of funds in securities which, at the time of making the investment, are by law permitted for the investment of funds by fiduciaries in this state, or through a combination of such methods. To the extent that funding is provided through insurance contract, no contributions, payments or premiums shall be subject to any tax on insurance premiums or annuity considerations. The investment committee for the judicial retirement fund shall be trustee of any and all funds contributed or appropriated to the retirement system, and shall have sole authority to make insurance contracts or investments.
  2. The board members or any investment adviser shall discharge their duties with respect to the funds of the retirement system solely in the interest of the members and beneficiaries and:
    1. For the exclusive purposes of providing benefits to members and their beneficiaries and defraying reasonable expenses of administering the plan;
    2. With the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; and
    3. In accordance with the laws, regulations and other instruments governing the funds.
  3. Any accrual of benefits provided under this or any other applicable statute shall be no less than the benefit adjustment provided for in KRS 21.405(4) from the date of the last establishment of that benefit.
  4. The board shall establish ethics policies and procedures by promulgation of administrative regulations in accordance with the provisions of KRS Chapter 13A. The ethics policies shall include but not be limited to annual financial and conflict of interest disclosure requirements which must be completed by all board members and made available to the public upon request.

History. Enact. Acts 1960, ch. 84, Art. III, § 11; 1978, ch. 384, § 6, effective June 17, 1978; 1980, ch. 246, § 9, effective July 15, 1980; 1984, ch. 111, § 169, effective July 13, 1984; 2000, ch. 448, § 4, effective July 14, 2000; 2012, ch. 75, § 5, effective April 11, 2012.

NOTES TO DECISIONS

1.Constitutionality.

Under Kentucky Supreme Court precedents, H.B. 389(4) 2000 Reg. Sess. ( Ky. 2000 ), which amended a provision of the Judicial Retirement Act, KRS 21.450(3) was clearly an unconstitutional delegation, as the unintelligible statute had neither “an intelligible principle,” nor standards controlling the exercise of administrative discretion, and the Kentucky Supreme Court concluded that Ky. H.B. 389(4), subsequently codified at KRS 21.450(3), was unconstitutional because it violated the nondelegation doctrine embodied in Ky. Const. §§ 27, 28, 29 and 60. Bd. of Trs. of the Judicial Form Ret. Sys. v. AG, 132 S.W.3d 770, 2003 Ky. LEXIS 238 ( Ky. 2003 ).

2.Legislative Intent.

In an action for a declaratory judgment by the Kentucky Board of Trustees of the Judicial Form Retirement System if the legislative intent in amending KRS 21.450 by H.B. 389(4), 2000 Reg. Sess. ( Ky. 2000 ), was to amend KRS 61.510(13), that fact was certainly not apparent, or even vaguely discernible, from the language of the bill. Bd. of Trs. of the Judicial Form Ret. Sys. v. AG, 132 S.W.3d 770, 2003 Ky. LEXIS 238 ( Ky. 2003 ).

Opinions of Attorney General.

Section 4 of House Bill 389, which amended KRS 21.450 , was an unconstitutional delegation of legislative power to the Judicial Form Retirement System, as it was impossible to determine from the plain language of the amendment or its legislative history the meaning of the words in the section. OAG 00-5 .

21.455. Registration and custody of securities. [Repealed.]

Compiler’s Notes.

This section (Acts 1976, ch. 60, § 5) was repealed by Acts 1980, ch. 407, § 23, effective July 1, 1980. For present law, see KRS 21.550 .

21.460. Refund of contributions or account balance for members who began participating before January 1, 2014 — Purchase of service credit — Interest on deferred refunds — Repayment.

    1. For members who began participating in the Judicial Retirement Plan prior to January 1, 2014: If any member of the plan ceases, other than by death or by disability retirement under KRS 21.410 , to hold an office qualifying him or her for membership in the plan established by KRS 21.350 to 21.480 , without having met the requirements for vesting, he or she shall be refunded on demand the amount of his or her accumulated contributions and any service credit he or she had in the plan shall be nullified. (1) (a) For members who began participating in the Judicial Retirement Plan prior to January 1, 2014: If any member of the plan ceases, other than by death or by disability retirement under KRS 21.410 , to hold an office qualifying him or her for membership in the plan established by KRS 21.350 to 21.480 , without having met the requirements for vesting, he or she shall be refunded on demand the amount of his or her accumulated contributions and any service credit he or she had in the plan shall be nullified.
    2. A member who begins participating in the Judicial Retirement Plan on or after January 1, 2014, may, if the member ceases to hold an office qualifying him or her for membership in the plan established by KRS 21.345 to 21.580 , elect to take a refund of his or her accumulated account balance subject to the limitations provided by KRS 21.402 .
  1. The member may elect to leave his or her contributions in the plan, in which event the service credit he or she had in the plan shall be considered to be service credit for vesting purposes as provided in KRS 21.375 and for service retirement eligibility as provided in KRS 61.680(7), and, in the event he or she again becomes a member of the Judicial Retirement Plan, shall be counted toward his or her total service credit in that plan.
  2. If a person who has been refunded his or her accumulated contributions or accumulated account balance in accordance with subsection (1) of this section subsequently becomes a member of the Legislators’ Retirement Plan, the Kentucky Employees Retirement System, County Employees Retirement System, State Police Retirement System, or Teachers’ Retirement System, he or she may while holding such membership repurchase the service credit he or she previously had in the Judicial Retirement Plan by repaying to that plan the amount that was refunded to him or her with interest at six percent (6%) per annum, in which event such service credit shall have operative effect to the same limited extent as provided in subsection (2) of this section. Service purchased under this subsection on or after January 1, 2014, shall not be used to determine the member’s participation date in the Judicial Retirement Plan.
  3. If a person who has been refunded his accumulated contribution or accumulated account balance in accordance with subsection (1) of this section thereafter becomes again the holder of an office qualifying him or her for membership in the Judicial Retirement Plan, he or she shall not be entitled to credit for his or her prior period of service unless he or she has previously repaid his or her refunded contributions in accordance with subsection (3) of this section or unless within thirty (30) days after again assuming office he or she repays to the plan the amount that was refunded to him or her with interest at six percent (6%) per annum. Service purchased under this subsection on or after January 1, 2014, shall not be used to determine the member’s participation date in the Judicial Retirement Plan.
  4. If the taking of a refund of contributions by a member of the Kentucky Judicial Retirement Plan, when first entitled thereto, would subject the member to a federal excise tax, by reason of the refund’s being made before the member has reached an age designated by the federal taxing act, and the member has elected, pursuant to subsection (2) of this section, to defer taking a refund, so much of the contributions as would have been subject to the excise tax shall accrue interest at the rate of six percent (6%) per annum, from the date the member first could have taken a refund until the date the refund is taken or the date as of which the federal excise tax no longer would apply to a refund, whichever is sooner, the interest to be paid by the plan at the time of the refund. The provisions of this subsection shall not apply to members who begin participating in the Judicial Retirement Plan on or after January 1, 2014.

HISTORY: Enact. Acts 1960, ch. 84, Art. III, § 12; 1962, ch. 9, § 8; 1968, ch. 152, § 6; 1982, ch. 458, § 2, effective April 15, 1982; 1984, ch. 111, § 28, effective July 13, 1984; 1988, ch. 299, § 2, effective July 15, 1988; 2013, ch. 120, § 30, effective July 1, 2013; 2018 ch. 107, § 10, effective July 14, 2018; 2021 ch. 102, § 43, effective April 1, 2021.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

Opinions of Attorney General.

In the absence of any legal relationship between the Judicial Retirement System and its ex-member the fact that the latter may subsequently obtain service credit in another state retirement system would not entitle him to count that service credit toward vesting in the Judicial Retirement System. OAG 78-538 .

Since there is no legal obligation on the part of the Judicial Retirement System to an ex-member who does not demand a refund, the contributions then being held by the Judicial Retirement System do not constitute or reflect service credit in that system, and, at best, the contributions simply constitute an amount of money belonging to the ex-member which he has left in the hands of the Judicial Retirement System. OAG 78-538 .

21.470. Exemption from taxation, execution — Taxability after December 31, 1997.

All retirement allowances and other benefits accrued or accruing to any person under the provisions of KRS 21.350 to 21.510 are hereby exempted from any state, county or municipal tax, and shall not be subject to execution, attachment, garnishment or any other process whatsoever, nor shall any assignment thereof be enforceable in any court. Except retirement benefits accrued or accruing to any person under the provisions of KRS 21.350 to 21.510 on or after January 1, 1998, shall be subject to the tax imposed by KRS 141.020 , to the extent provided in KRS 141.010 and 141.0215 .

History. Enact. Acts 1960, ch. 84, Art. III, § 13; 1995 (2nd Ex. Sess.), ch. 1, § 3, effective April 28, 1995.

21.480. KRS 21.350 to 21.510 creates vested interest for members who began participating before January 1, 2014 — Exceptions — Amendment of benefits and rights. [Declared void — See LRC Note Below]

  1. For members who begin participating in the Judicial Retirement Plan prior to January 1, 2014, it is hereby declared that in consideration of the contributions by the members, and in further consideration of benefits received by the state through the inducement of qualified and experienced judges and commissioners to continue in service, KRS 21.350 to 21.510 , except as provided in KRS 6.696 , shall constitute an inviolable contract of the Commonwealth, and the rights and benefits provided therein shall, not be subject to reduction or impairment by alteration, amendment or repeal, except:
    1. As provided in KRS 6.696 ; and
    2. The General Assembly reserves the right to amend, reduce, or suspend any legislative changes to the provisions of KRS 21.345 to 21.580 that become effective on or after July 1, 2018.
    1. For members who begin participating in the Judicial Retirement Plan on or after January 1, 2014, the General Assembly reserves the right to amend, suspend, or reduce the benefits and rights provided under KRS 21.345 to 21.580 if, in its judgment, the welfare of the Commonwealth so demands, except that the amount of benefits the member has accrued at the time of amendment, suspension, or reduction shall not be affected. (2) (a) For members who begin participating in the Judicial Retirement Plan on or after January 1, 2014, the General Assembly reserves the right to amend, suspend, or reduce the benefits and rights provided under KRS 21.345 to 21.580 if, in its judgment, the welfare of the Commonwealth so demands, except that the amount of benefits the member has accrued at the time of amendment, suspension, or reduction shall not be affected.
    2. For purposes of this subsection, the amount of benefits the member has accrued at the time of amendment, suspension, or reduction shall be limited to the accumulated account balance the member has accrued at the time of amendment, suspension, or reduction.
    3. The provisions of this subsection shall not be construed to limit the General Assembly’s authority to change any other benefit or right specified by KRS 21.345 to 21.580, for members who begin participating in the Judicial Retirement Plan on or after January 1, 2014, except the benefits specified by paragraph (b) of this subsection.
  2. The provisions of this section shall not be construed to limit the General Assembly’s authority to amend, reduce, or suspend the benefits and rights of members of the Judicial Retirement Plan as provided by KRS 21.345 to 21.580 that the General Assembly had the authority to amend, reduce, or suspend, prior to July 1, 2013.

HISTORY: Enact. Acts 1960, ch. 84, Art. III, § 14; 1993 (1st Ex. Sess.), ch. 4, § 76, effective September 16, 1993; 2013, ch. 120, § 31, effective July 1, 2013; 2018 ch. 107, § 11, effective July 14, 2018.

Legislative Research Commission Notes.

(12/13/2018). On December 13, 2018, the Kentucky Supreme Court ruled that the passage of 2018 SB 151 (2018 Ky. Acts ch. 107), did not comply with the three-readings rule of Kentucky Constitution Section 46 and that the legislation is, therefore, constitutionally invalid and declared void. That ruling applies to changes made to this statute in that Act.

Opinions of Attorney General.

In light of the contractual obligation created by this section, the General Assembly may now limit retirement benefits to a certain maximum percentage of final annual salary only prospectively as to present nonretired and future members of the retirement plan. OAG 78-4 .

The General Assembly could enact legislation guaranteeing members of this retirement system only the amount each has contributed toward his retirement benefits but such legislation may not have retroactive effect. OAG 78-4 .

Since Chapter 4 of Acts 1993 (1st Ex. Sess.) contained an emergency clause [§ 92] it became effective as a whole when the Governor tendered the bill, which he had signed, to the Secretary of State on February 18, 1993. However, section 87 (13) of Ch. 4 of Acts 1993 (1st Ex. Sess.), provided that, except as provided in §§ 88, 89, and 90, §§ 1-84 of the Act should become effective two hundred ten (210) days after the effective date of the Act, September 16, 1993; other subsections within § 87 establish a transition schedule with other specific dates calculated from the effective date of the Act. Such schedule is actually a listing of deadlines within which certain actions called for in § 87 of the Act are to be completed. Such schedule is as follows: “within 45 days of the effective date of the act” = on or before April 5, 1993; “within 60 days of the effective date of the act” = on or before April 19, 1993; “within 75 days of the effective date of the act” = on or before May 4, 1993; “within 90 days of the effective date of the act” = on or before May 19, 1993; “within 150 days of the effective date of the act” = on or before July 19, 1993; “within 180 days of the effective date of the act” = on or before August 17, 1993; “two hundred ten (210) days after the effective date of the act” = September 16, 1993. OAG 93-25 .

21.490. Termination of membership in Kentucky employees’ retirement system — Refund of contributions. [Repealed.]

Compiler’s Notes.

This section (Acts 1960, ch. 84, Art. III, § 15) was repealed by Acts 1980, ch. 407, § 23, effective July 1, 1980.

21.500. Provision for judge or commissioner who is over seventy on effective date of system. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 84, Art. III, § 17) was repealed by Acts 1984, ch. 111, § 199, effective July 13, 1984.

21.510. Appropriation — Transfer of funds to judicial retirement fund.

For the purposes of KRS 21.350 to 21.510 , there is appropriated to the judicial retirement fund all sums received from contributions of members of the retirement system created by KRS 21.350 to 21.510 . There further is appropriated, out of the general expenditure fund in the State Treasury, the sum of $53,600 for the fiscal year 1960-61 and the sum of $73,600 for the fiscal year 1961-62. The amount of accumulated state employer contributions to the Kentucky Employees Retirement System, on account of judges and commissioners of the Court of Appeals having been members of that system, also is hereby transferred to the judicial retirement fund. All sums appropriated or transferred to the judicial retirement fund shall be deemed to constitute a continuing fund which shall not lapse at the end of any fiscal year.

History. Enact. Acts 1960, ch. 84, Art. III, § 18; 1984, ch. 111, § 29, effective July 13, 1984.

21.520. Disposition and use of assets of former special circuit judge fund — Segregation of funds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 9, § 10; 1974, ch. 386, § 5) was repealed by Acts 1984, ch. 111, § 199, effective July 13, 1984.

21.525. Contributions by state — Normal contributions — Past service liability contribution — Employer costs for hybrid cash balance plan.

  1. The state, by appropriation to the Judicial Retirement Board, shall contribute annually to the Judicial Retirement System an amount equal to the percent as computed under subsection (2) of this section of the creditable compensation of active members of the Judicial Retirement System, to be known as the “normal contributions,” and an additional amount equal to one percent (1%) of the unfunded past service liabilities, plus annual interest accruing thereon at the actuarially assumed rate of interest adopted by the board to be known as the “past service contribution.”
  2. The normal contribution rate shall be determined either by the entry age normal cost funding method or the unit credit actuarial method, as selected by the board. The past service liability shall be determined by actuarial methods consistent with the methods prescribed for determining the normal contribution rate. The board shall adopt the actuarial assumptions that are to be used in making the determinations.
  3. Normal contributions and the past service liability contribution for each fiscal biennium shall be determined on the basis of the actuarial valuation last preceding the commencement of the biennium.
  4. Employer costs for the hybrid cash balance plan as provided by KRS 21.402 shall be incorporated into the employer contribution rate of the Legislators’ Retirement Plan and the Judicial Retirement Plan as a new benefit tier within the plans.

History. Enact. Acts 1980, ch. 246, § 6, effective July 15, 1980; 1988, ch. 299, § 4, effective July 15, 1988; 2013, ch. 120, § 32, effective July 1, 2013.

21.530. Coordination of Legislators’ Retirement and Judicial Retirement Plans — Board.

  1. For administrative purposes only, as hereinafter provided, the Legislators’ Retirement Plan and the Judicial Retirement Plan shall be coordinated under the name, Judicial Form Retirement System, but each of the plans shall maintain its separate identity. A board of trustees of that system hereby is created, to consist of eight (8) members, three (3) of whom shall be appointed by the Supreme Court, two (2) by the Governor, subject to Senate confirmation in accordance with KRS 11.160 for each appointment or reappointment, one (1) by the President of the Senate, one (1) by the Speaker of the House of Representatives, and one (1) by the president and speaker jointly. The appointments by the Governor shall:
    1. Not be from among the members of either of the plans in the system, or from among the persons drawing benefits from either of those plans; and
    2. Have investment experience. For purposes of this paragraph, a trustee with “investment experience” means an individual who does not have a conflict of interest, as provided by KRS 21.540 , and who has at least ten (10) years of experience in one (1) of the following areas of expertise:
      1. A portfolio manager acting in a fiduciary capacity;
      2. A professional securities analyst or investment consultant;
      3. A current or retired employee or principal of a trust institution, investment or finance organization, or endowment fund acting in an investment-related capacity;
      4. A chartered financial analyst in good standing as determined by the CFA Institute; or
      5. A university professor, teaching investment-related studies.
    1. The members of the board shall serve for terms of four (4) years, commencing as of July 1, 1980, and until their successors are chosen and have qualified; provided that if a member of the board who was a member of one (1) of the plans in the system when he was appointed ceases to be a member of that plan, a vacancy shall thereupon be deemed to exist in his position on the board; and provided further, that the members of the Judicial Retirement Board in office on July 1, 1980, shall serve for the remainder of the terms for which they were appointed, as the members of the board created by this section, in the positions appointable by the Supreme Court and the Governor. Vacancies shall be filled by the appointing authority for the unexpired term. (2) (a) The members of the board shall serve for terms of four (4) years, commencing as of July 1, 1980, and until their successors are chosen and have qualified; provided that if a member of the board who was a member of one (1) of the plans in the system when he was appointed ceases to be a member of that plan, a vacancy shall thereupon be deemed to exist in his position on the board; and provided further, that the members of the Judicial Retirement Board in office on July 1, 1980, shall serve for the remainder of the terms for which they were appointed, as the members of the board created by this section, in the positions appointable by the Supreme Court and the Governor. Vacancies shall be filled by the appointing authority for the unexpired term.
    2. A trustee shall not serve more than three (3) consecutive four (4) year terms. A trustee who has served three (3) consecutive terms may be appointed again after an absence of four (4) years from the board. The term limits established by this paragraph shall apply to trustees serving on or after July 1, 2012, and all terms of office served prior to July 1, 2012, shall be used to determine if the trustee has exceeded the term limits provided by this paragraph.
  2. The members of the board shall annually elect a chairman. The chairman shall not serve more than four (4) consecutive years as chairman of the board. A trustee who has served four (4) consecutive years as chairman of the board may be elected chairman of the board after an absence of two (2) years from the position.
  3. Gubernatorial appointees, and judicial and legislative appointees who do not receive an annual salary from the State Treasury in another capacity shall receive an amount equal to the per diem compensation paid to members of the General Assembly for each day they are in session. All members shall be reimbursed for their necessary expenses.

History. Enact. Acts 1980, ch. 407, § 19, effective July 1, 1980; 1994, ch. 486, § 16, effective July 15, 1994; 2000, ch. 448, § 3, effective July 14, 2000; 2003, ch. 128, § 5, effective June 24, 2003; 2012, ch. 75, § 6, effective April 11, 2012; 2017 ch. 12, § 1, effective March 10, 2017.

Legislative Research Commission Notes.

(3/10/2017). 2017 Ky. Acts ch. 12, sec. 14 provided that amendments made to subsection (1) of this statute in 2017 Ky. Acts ch. 12, sec. 1 that require Senate confirmation of, and modify the requirements for, gubernatorial appointments to the Judicial Form Retirement System and the Kentucky Retirement Systems boards of trustees shall apply to appointments or reappointments made on or after March 10, 2017, the effective date of that Acts chapter.

NOTES TO DECISIONS

Cited in:

Bd. of Trs. of the Judicial Form Ret. Sys. v. AG, 132 S.W.3d 770, 2003 Ky. LEXIS 238 ( Ky. 2003 ), rehearing denied, Bd. of Trs. of the Judicial Form Ret. Sys. v. AG of Ky., 2004 Ky. LEXIS 129 ( Ky. 2004 ); Karem v. Bd. of Trs. of the Judicial Form Ret. Sys., 293 S.W.3d 401, 2009 Ky. App. LEXIS 62 (Ky. Ct. App. 2009).

21.540. Duties of board of trustees — Qualified domestic relations orders — Intent to conform with federal law — Availability of information on Web site — Conflicts of interest — Prohibition against fees for unregulated placement agents — Investment procurement policy — Release of certain information from accounts of current or former legislators.

  1. Except as provided in KRS 21.550 , 21.560 , and subsections (3) and (7) of this section, the board of trustees of the Judicial Form Retirement System shall be charged with the administration of that system and of KRS 21.350 to 21.510 , and shall have all powers necessary thereto, including the power to promulgate all reasonable administrative regulations, pass upon questions of eligibility and disability, make employments for services, and to contract for fiduciary liability insurance, and for investment counseling, actuarial, auditing, and other professional services subject to the limitations of KRS Chapters 45, 45A, 56, and 57. The administrative expenses shall be paid out of an administrative account which shall be funded by transfers of the necessary money, in appropriate ratio, from the funds provided for in KRS 21.550 and 21.560 .
    1. A qualified domestic relations order issued by a court or administrative agency shall be honored by the Judicial Form Retirement System if the order is in compliance with the requirements established by the retirement system. (2) (a) A qualified domestic relations order issued by a court or administrative agency shall be honored by the Judicial Form Retirement System if the order is in compliance with the requirements established by the retirement system.
    2. Except in cases involving child support payments, the Judicial Form Retirement System may charge reasonable and necessary fees and expenses to the participant and the alternate payee of a qualified domestic relations order for the administration of the qualified domestic relations order by the retirement system. All fees and expenses shall be established by administrative regulations promulgated by the board of trustees of the retirement system. The qualified domestic relations order shall specify whether the fees and expenses provided by this subsection shall be paid:
      1. Solely by the participant;
      2. Solely by the alternate payee; or
      3. Equally shared by the participant and alternate payee.
    3. For purposes of this subsection, a “qualified domestic relations order” shall mean any judgment, decree, or order, including approval of a property settlement agreement, that:
      1. Is issued by a court or administrative agency; and
      2. Relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a member.
  2. Notwithstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that the provisions of KRS 21.345 to 21.580 and 6.500 to 6.577 shall conform with federal statutes or regulations and meet the qualification requirements under 26 U.S.C. sec. 401(a) , applicable federal regulations, and other published guidance, and the board shall have the authority to promulgate administrative regulations, with retroactive effect if required under federal law, to conform the Legislators’ Retirement Plan and the Judicial Retirement Plan with federal statutes and regulations and to meet the qualification requirements under 26 U.S.C. sec. 401(a) .
  3. In order to improve public transparency regarding the administration of the Legislators’ Retirement Plan and the Judicial Retirement Plan, the board of trustees of the Judicial Form Retirement System shall adopt a best-practices model by posting the following information to the system’s Web site and shall make it available to the public:
    1. Meeting notices and agendas for all meetings of the board. Notices and agendas shall be posted to the system’s Web site at least seventy-two (72) hours in advance of the board or committee meetings, except in the case of special or emergency meetings as provided by KRS 61.823 ;
    2. A list of the members of the board of trustees and membership on each committee established by the board, including any investment committees;
    3. A list of system staff and each staff’s salary;
    4. A list of the fund’s professional consultants and their respective fees and commissions paid by the system;
    5. A list of the system’s expenditures;
    6. The annual financial audit of the system, which shall include but not be limited to a statement of plan net assets, a statement of changes in plan net assets, an actuarial value of assets, a schedule of investments, a statement of funded status and funding progress, and other supporting data;
    7. All external audits;
    8. The annual actuarial valuation report of pension and retiree health benefits of each retirement plan administered by the system, which shall include a general statistical section and information on contributions, benefit payouts, and retirement plan demographic data;
    9. All board minutes or other materials that require adoption or ratification by the board of trustees or committees of the board. The items listed in this paragraph shall be posted within seventy-two (72) hours of adoption or ratification by the board or committees;
    10. All bylaws, policies, or procedures adopted or ratified by the board of trustees or by committees of the board;
    11. The summary plan description for each plan administered by the system;
    12. A document or a link to documents containing an of the statutes governing the plans administered by the Judicial Form Retirement System;
    13. Investment information, including all investment holdings in aggregate, fees, and commissions for each fund administered by the board, which shall be updated on a quarterly basis for fiscal years beginning on or after July 1, 2017. The system shall request from all managers, partnerships, and any other available sources all information regarding fees and commissions and shall, based on the requested information received:
      1. Disclose the dollar value of fees and commissions paid to each individual manager or partnership;
      2. Disclose the dollar value of any profit sharing, carried interest, or any other partnership incentive arrangements, partnership agreements, or any other partnership expenses received by or paid to each manager or partnership; and
      3. As applicable, report each fee or commission by manager or partnership consistent with standards established by the Institutional Limited Partners Association (ILPA). In addition to the requirements of this paragraph, the system shall also disclose the name and address of all individual underlying managers or partners in any fund of funds in which system assets are invested;
    14. An update of net investment returns, asset allocations, and the performance of the funds against benchmarks adopted by the board for each fund, for each asset class administered by the board, and for each manager over a historical period. The update shall be posted on a quarterly basis for fiscal years beginning on or after July 1, 2017;
    15. All contracts or offering documents for services, goods, or property purchased or utilized by the system. Notwithstanding KRS 61.878 , all contracts, including investment contracts, shall be subject to review by the board, the Auditor of Public Accounts, and the Government Contract Review Committee established pursuant to KRS 45A.705 . If any public record contains material which is not excepted under KRS 61.878 , the system shall separate the excepted material by removal, segregation, or redaction, and make the nonexcepted material available for examination; and
    16. Information regarding the system’s financial and actuarial condition that is easily understood by the members, retired members, and the public. Nothing in this subsection shall require or compel the Judicial Form Retirement System to disclose information specific to the account of an individual member of the Legislators’ Retirement Plan or the Judicial Retirement Plan.
  4. No trustee or employee of the board shall:
    1. Have any interest, direct or indirect, in the gains or profits of any investment or transaction made by the board, provided that the provisions of this paragraph shall not prohibit a member or retiree of one (1) of the retirement plans administered by the system from serving as a trustee;
    2. Directly or indirectly, for himself or herself or as an agent, use the assets of the system, except to make current and necessary payments authorized by the board;
    3. Become an endorser, surety, or obligor for moneys loaned by or borrowed from the board;
    4. Have a contract or agreement with the retirement system, individually or through a business owned by the trustee or the employee;
    5. Use his or her official position with the retirement system to obtain a financial gain or benefit or advantage for himself or herself or a family member;
    6. Use confidential information acquired during his or her tenure with the systems to further his or her own economic interests or that of another person; or
    7. Hold outside employment with, or accept compensation from, any person or business with which he or she has involvement as part of his or her official position with the system. The provisions of this paragraph shall not prohibit:
      1. A trustee from serving as a judge or member of the General Assembly; or
      2. A trustee from serving on the board if the compensation is de minimus and incidental to the trustee’s outside employment. If the compensation is more than de minimus, the trustee shall disclose the amount of the compensation to the other trustees and recuse himself or herself from any matters involving hiring or retaining a person or a business from whom more than de minimus amounts are received by the trustee. For purposes of this section, “de minimus” means an insignificant amount that does not raise a reasonable question as to the trustee’s objectivity.
  5. Notwithstanding any other provision of KRS 6.500 to 6.577 and 21.345 to 21.580 to the contrary, no funds of the Legislators’ Retirement Plan or the Judicial Retirement Plan, including fees and commissions paid to an investment manager, private fund, or company issuing securities, who manages systems assets, shall be used to pay fees and commissions to placement agents. For purposes of this subsection, “placement agent” means a third-party individual, who is not an employee, or firm, wholly or partially owned by the entity being hired, who solicits investments on behalf of an investment manager, private fund, or company issuing securities.
  6. All contracts for the investment or management of assets of the system shall not be subject to KRS Chapters 45, 45A, 56, and 57. Instead, the board shall conduct the following process to develop and adopt an investment procurement policy with which all prospective contracts for the investment or management of assets of the system shall comply:
    1. On or before July 1, 2017, the board shall consult with the secretary of the Finance and Administration Cabinet or his or her designee to develop an investment procurement policy, which shall be written to meet best practices in investment management procurement;
    2. Thirty (30) days prior to adoption, the board shall tender the preliminary investment procurement policy to the secretary of the Finance and Administration Cabinet or his or her designee for review and comment;
    3. Upon receipt of comments from the secretary of the Finance and Administration Cabinet or his or her designee, the board shall choose to adopt or not adopt any recommended changes;
    4. Upon adoption, the board shall tender the final investment procurement policy to the secretary of the Finance and Administration Cabinet or his or her designee;
    5. No later than thirty (30) days after receipt of the investment procurement policy, the secretary or his or her designee shall certify whether the board’s investment procurement policy meets or does not meet best practices for investment management procurement; and
    6. Any amendments to the investment procurement policy shall adhere to the requirements set forth by paragraphs (b) to (e) of this subsection.
      1. Upon request by any person, the Judicial Form Retirement System shall release the following information from the accounts of any member or retiree of the Legislators’ Retirement Plan or the Judicial Retirement Plan, if the member or retiree is a current or former officeholder in the Kentucky General Assembly: (8) (a) 1. Upon request by any person, the Judicial Form Retirement System shall release the following information from the accounts of any member or retiree of the Legislators’ Retirement Plan or the Judicial Retirement Plan, if the member or retiree is a current or former officeholder in the Kentucky General Assembly:
        1. The first and last name of the member or retiree;
        2. The plan or plans in which the member has an account or from which the retiree is receiving a monthly retirement allowance;
        3. The status of the member or retiree, including but not limited to whether he or she is a contributing member, a member who is not currently contributing to the plans but has not retired, or a retiree drawing a monthly retirement allowance;
        4. If the individual is a retiree, the monthly retirement allowance that he or she was receiving at the end of the most recently completed fiscal year; and
        5. If the individual is a member who has not yet retired, the estimated monthly retirement allowance that he or she is eligible to receive on the first date he or she would be eligible for an unreduced retirement allowance, using his or her service credit, final compensation, and accumulated account balance at the end of the most recently completed fiscal year.
      2. No information shall be disclosed under this paragraph from an account that is paying benefits to a beneficiary due to the death of a member or retiree.
    1. The release of information under paragraph (a) of this subsection shall not constitute a violation of the Open Records Act, KRS 61.870 to 61.884 .

History. Enact. Acts 1980, ch. 407, § 20, effective July 1, 1980; 1984, ch. 111, § 30, effective July 13, 1984; 1990, ch. 263, § 1, effective July 13, 1990; 1994, ch. 266, § 1, effective July 15, 1994; 2010, ch. 132, § 1, effective July 15, 2010; 2010, ch. 148, § 4, effective July 15, 2010; 2012, ch. 75, § 7, effective April 11, 2012; 2013, ch. 43, § 1, effective June 25, 2013; 2017 ch. 4, § 3, effective March 10, 2017; 2017 ch. 12, § 2, effective March 10, 2017.

Legislative Research Commission Notes.

(3/10/2017). This statute was amended by 2017 Ky. Acts chs. 4 and 12, which do not appear to be in conflict and have been codified together.

(3/10/2017). 2017 Ky. Acts ch. 12, sec. 12 provided that amendments made to subsections (1) and (6) of this statute in 2017 Ky. Acts ch. 12, sec. 2 governing placement agents and contracts or offerings entered into by the state-administered retirement systems shall apply to contracts and offerings established or contracts or offerings renewed on or after July 1, 2017.

(3/10/2017). 2017 Ky. Acts ch. 12, sec. 13 provided that amendments made to subsections (1) and (7) of this statute in 2017 Ky. Acts ch. 12, sec. 2 governing the application of the Model Procurement Code, KRS Chapter 45A, and related statutes to the state-administered retirement systems, shall apply to contracts and offerings established or contracts or offerings renewed on or after July 1, 2017.

(4/11/2012). 2012 Ky. Acts ch. 75, sec. 18, provides that the amendments made to subsection (6) of this statute regarding unregulated placement agents by 2012 Ky. Acts ch. 75, sec. 7, “shall apply to contracts established or contracts renewed on or after July 1, 2012.”

21.550. Investments, judicial retirement fund.

  1. Those members of the board of trustees of the Judicial Form Retirement System who are appointed by the Supreme Court, together with the members appointed by the Governor, shall constitute an investment committee for the Judicial Retirement Plan, and as such shall have full and sole authority over the judicial retirement fund and the investment thereof, including the prescribing of funding standards, the adoption of actuarial methods and assumptions, and the making of employments or contracts for required personal services, including administrative, actuarial and investment counseling services. The committee shall be considered trustee of the judicial retirement fund and shall have the sole authority to make investment transactions or obtain insurance contracts for funding purposes. The fund shall be invested in securities which, at the time of making the investment, are by law permitted for the investment of funds by fiduciaries in this state, or funding may be accomplished in part by contract with a reputable life insurance company authorized to do business in this state. To the extent that funding is provided through insurance contract, no contributions, payments or premiums shall be subject to any tax on insurance premiums or annuity considerations.
  2. The investment committee for the judicial retirement fund shall appoint one (1) or more custodians of the securities acquired under authority of this section, each of whom shall be responsible for the safekeeping of the securities in his custody. All registered securities shall be registered in the name “Kentucky Judicial Retirement Fund” (securities heretofore registered in the name “Kentucky Judicial Retirement System” may continue in that name), or in nominee name as provided comparably in KRS 286.3-225 , and every change in registration, by reason of sale or assignment of such securities, shall be accomplished by the signatures of the chairman of the investment committee or a member of that committee appointed by the chairman, and by the secretary-treasurer of the fund.

History. Enact. Acts 1980, ch. 407, § 21, effective July 1, 1980.

Legislative Research Commission Notes.

(7/12/2006). 2006 Ky. Acts ch. 247 instructs the Reviser of Statutes to adjust KRS references throughout the statutes to conform with the 2006 renumbering of the Financial Services Code, KRS Chapter 286. Such an adjustment has been made in this statute.

Research References and Practice Aids

2010-2012 Budget Reference.

See Judicial Branch Budget, 2010 Ky. Acts ch. 154, Pt. I, 2, (1) at 2117.

See Legislative Branch Budget, 2010 Ky. Acts ch. 156, Pt. I, 1, (1) at 2123.

21.560. Investments — Legislative retirement fund.

The members of the board of trustees of the Judicial Form Retirement System who are appointed by the President of the Senate and the Speaker of the House of Representatives, singly or jointly, together with the members of the board who are appointed by the Governor, shall constitute an investment committee for the Legislators’ Retirement Plan, and as such shall have all the powers and duties with respect to the legislators’ retirement fund as are given by KRS 21.440(1) and 21.550 to the investment committee of the Judicial Retirement Plan with respect to the judicial retirement fund. The committee provided for by this section may, with the concurrence of the investment committee for the Judicial Retirement Plan, arrange for the legislators’ retirement fund and the judicial retirement fund to constitute a common fund for investment purposes only, to be under the management of the investment committee for the Judicial Retirement Plan, each fund sharing in the common fund in proportion to the value of its assets contributed to the common fund.

History. Enact. Acts 1980, ch. 407, § 22, effective July 1, 1980; 1984, ch. 111, § 31, effective July 13, 1984; 1994, ch. 486, § 17, effective July 15, 1994.

21.565. Administration and assets of plan created under KRS 21.567.

  1. The Kentucky Judicial Retirement Plan excess benefit plan established in KRS 21.567 shall be administered by the board of trustees of the Kentucky Judicial Form Retirement System. The board shall have the same authority in its administration as it has in the administration of the Kentucky Judicial Retirement Plan.
  2. The plan shall constitute a qualified governmental excess benefit plan as provided in 26 U.S.C. sec. 415(m) .
  3. All retired members and beneficiaries of the Kentucky Judicial Retirement Plan whose effective retirement dates are July 1, 1998, or after, and whose retirement allowances have been limited by 26 U.S.C. sec. 415 shall be participants in the plan. Each member’s participation in the plan shall be determined each fiscal year and shall cease for any year in which the retirement allowance is not limited by 26 U.S.C. sec. 415 .
  4. A participant shall receive a benefit equal to the difference between the retirement allowance otherwise payable from the plan prior to any reduction or limitation required by 26 U.S.C. sec. 415 and the actual retirement allowance payable as limited by 26 U.S.C. sec. 415 . The benefit shall be subject to withholding for applicable state and federal taxes. The benefit shall be paid in accordance with the retirement payment option selected by the member for the retirement allowance.
    1. The board, in accordance with the recommendation of the actuary, shall determine the required contribution to pay benefits each fiscal year. The required contribution for each fiscal year shall be the total amount of benefits payable under this section to all participants plus the amount required to pay any employment taxes on the benefits paid from the plan. (5) (a) The board, in accordance with the recommendation of the actuary, shall determine the required contribution to pay benefits each fiscal year. The required contribution for each fiscal year shall be the total amount of benefits payable under this section to all participants plus the amount required to pay any employment taxes on the benefits paid from the plan.
    2. The required contribution shall be paid from state appropriations.
    3. The required contribution shall be deposited into the separate fund. The plan is intended to be exempt from federal income tax under 26 U.S.C. sec. 115 and 26 U.S.C. sec. 415(m)(1) .
    4. The benefit liability shall be determined on a fiscal year basis, and contributions shall not be accumulated to pay benefits in future fiscal years. Any assets not used to pay benefits in the current fiscal year shall be paid to the Retirement Plan.
  5. The benefits payable from the plan shall be treated in accordance with KRS 21.470 .

History. Enact. Acts 2002, ch. 90, § 1, effective July 15, 2002.

21.567. Kentucky Judicial Retirement Plan excess benefit plan — Excess benefit fund.

  1. There is created and established:
    1. An excess benefit plan to be known as the Kentucky Judicial Retirement Plan excess benefit plan. The plan is created for the purpose of providing retirement allowances payable from the retirement plan under KRS 21.345 to 21.580 that would otherwise be limited by 26 U.S.C. sec. 415 ; and
    2. A state fund to be known as the Kentucky Judicial Retirement Plan excess benefit fund which shall consist of all the assets of the plan.
  2. The administration and assets of the plan created under this section shall be as set forth in KRS 21.565 .

History. Enact. Acts 2002, ch. 90, § 2, effective July 15, 2002.

21.570. Nonseverability of provisions.

If any provision of Acts 1980, ch. 407, or the application thereof to any person or circumstance is held invalid, the entire chapter shall be invalid, and to this end the provisions of Acts 1980, ch. 407 are not severable.

History. Enact. Acts 1980, ch. 407, § 28, effective July 1, 1980.

Compiler’s Notes.

Acts 1980, ch. 407 referred to in this section is compiled as KRS 6.190 , 6.226 to 6.229 (now repealed), 6.500 to 6.535 , 21.347 , 21.400 , 21.530 to 21.570 , 64.005 , 64.057 , 64.485 .

21.580. Senior Status Program for Special Judges. [Repealed effective July 1, 2007; See 5/23/2007 LRC Note.]

  1. As a pilot project to determine the effectiveness of using senior retired judges to combat backlog and delay in Kentucky courts, there is hereby created a “Senior Status Program for Special Judges.” The program shall be implemented as follows:
    1. KRS 21.400 (1) and any other provision in KRS Chapter 21 to the contrary notwithstanding, a member who retires at a time when combining his total years of judicial service credit and his age equals or exceeds the number seventy-five (75), may elect, within ninety (90) days following retirement, to participate in the “Senior Status Program for Special Judges,” if he complies with the provisions of this subsection. In that event, the member shall be entitled to a service retirement allowance, commencing at the member’s normal retirement age, payable monthly during his lifetime in an amount equal to five percent (5%) of his final compensation multiplied by the number of years of his judicial service, not to exceed twenty (20) years of judicial service at the five percent (5%) factor, not to exceed one hundred percent (100%) of final compensation. “Final compensation”, notwithstanding any provision to the contrary, for all members retiring under any provision of KRS 21.345 to 21.570 or this section, or similar statutes governing the same positions, as defined in KRS 21.400 shall be based on a period of thirty-six (36) months. Any nonjudicial time shall be counted as is otherwise provided in KRS Chapter 21, but in no event shall service retirement allowance exceed one hundred percent (100%) of final compensation.
      1. In the event the retiring judge elects to retire as a “Senior Status Special Judge” under this subsection, he shall commit to serve, upon appointment by the Chief Justice of the Commonwealth, as special judge for one hundred twenty (120) work days per year for a term of five (5) years without compensation other than the retirement benefits under this subsection. The Senior Status Special Judge may agree to work more than one hundred twenty (120) days in any year within the five (5) years of service; however, the Senior Status Special Judge shall be compensated as otherwise provided by law, in addition to his retirement benefits, for any days served in excess of one hundred twenty (120) in that year. If the Senior Status Special Judge has not served a total of six hundred (600) days within the five (5) year period outlined in this subsection, the Chief Justice shall require the Senior Status Special Judge to serve at no additional compensation to the Senior Status Special Judge, until the six hundred (600) day period is served by the Senior Status Special Judge. The Senior Status Special Judge and the Chief Justice may agree in writing to serve less than the one hundred twenty (120) days in any one (1) or more of the five (5) years; however, any of the days not served in a given year shall be served at the end of the five (5) year period set forth in this subsection.
      2. Should any member electing to retire under the Senior Status Program for Special Judges fail, when ordered by the Chief Justice to serve the requisite number of days not to exceed one hundred twenty (120) days a year for the five (5) year period outlined in this subsection, unless otherwise agreed in writing, he shall no longer be eligible for benefits computed under this subsection and shall return to the benefits otherwise provided under this chapter.
      3. Subject to Section 110(5)(b) of the Kentucky Constitution, the Chief Justice shall give due regard, when practical, to the desirability of appointing Senior Status Special Judges to serve within their judicial region as defined by the regional administration charter.
    2. The inviolable contract provisions of Kentucky law, KRS 21.480 , shall apply during the period of time that KRS 21.580 is effective; however, no other provisions of 2000 Ky. Acts ch. 305 shall be considered subject to an inviolable contract of the Commonwealth.
    3. Nothing contained in this section shall be construed to invalidate provisions in the current law which require a penalty for retiring before the normal retirement age.
  2. The Senior Status Program for Special Judges created by this section shall be open to any member who is a judge in office on June 24, 2003, and who subsequently retires as a Senior Status Special Judge on or before January 31, 2009.

History. Enact. Acts 2000, ch. 305, § 1, effective July 14, 2000; 2000, ch. 305, § 4, repealed effective July 1, 2007; 2002, ch. 258, § 1, effective July 15, 2002; 2003, ch. 128, § 6, effective June 24, 2003.

Compiler’s Notes.

Section 3 of Acts 2000, ch. 305, effective July 14, 2000, read:

“On the effective date of this Act, and annually thereafter the Judicial Retirement System shall provide a written report to the Legislative Research Commission and to the Chief Justice of the Kentucky Supreme Court containing: (1) Number of judges who have retired as Senior Status Special Judges since the effective date of the Act; (2) Compensation and other benefits paid to those Senior Status Special Judges; (3) Number of days each Senior Status Special Judge has served as a special judge; (4) The fiscal impact on the judicial retirement system and the General Fund as a result of the retirement of the Senior Status Special Judges; and (5) Any other relevant information that may be requested.”

This section (Enact. Acts 2000, ch. 305, § 1, effective July 14, 2000; 2000, ch. 305, § 4, repealed effective July 1, 2007; 2002, ch. 258, § 1, effective July 15, 2002; 2003, ch. 128, § 6, effective June 24, 2003) was repealed by Acts 2000, ch. 305, § 4, effective July 1, 2007.

Legislative Research Commission Notes.

(5/23/2007). On May 23, 2007, the Franklin Circuit Court held that the enrollment and expiration dates for the Senior Status Program for Special Judges established by this statute were extended to January 31, 2009. George v. Board of Trustees of Judicial Form Retirement System , 07-CI-00587.

(6/24/2003). 2000 Ky. Acts ch. 305, sec. 1, created KRS 21.580 , which established the Senior Status Program for Special Judges. Section 4 of the same Act repealed KRS 21.580 effective July 1, 2007. Thereafter, 2002 Ky. Acts ch. 258, sec. 1, amended KRS 21.580 to change the retirement date from June 30, 2007, to January 31, 2009, and 2003 Ky. Acts ch. 128, sec. 6, amended KRS 21.580 to extend eligibility for the program to judges in office on June 24, 2003. Neither of these Acts specifically addresses the repeal set out in the 2000 Act.

NOTES TO DECISIONS

1.Appointment.

Appellants had no right to have a senior judge reappointed to their case as the senior judge had no claim to the case since senior judge assignments were made by the Chief Justice of the Kentucky Supreme Court under KRS 21.580 ; while a properly assigned special judge had all the powers and responsibilities of a regular judge under KRS 26A.020 , those powers and responsibilities were always secondary to those of the regular judge and could only ever come into play when the regular judge was unable to hear the case. Cox v. Braden, 266 S.W.3d 792, 2008 Ky. LEXIS 239 ( Ky. 2008 ).

Cited:

Commonwealth v. Vaughn, 117 S.W.3d 109, 2003 Ky. App. LEXIS 229 (Ky. Ct. App. 2003); Dalton v. Fortner, 125 S.W.3d 316, 2003 Ky. App. LEXIS 281 (Ky. Ct. App. 2003), rehearing denied, 2004 Ky. App. LEXIS 5 (Ky. Ct. App. 2004).

Penalties

21.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (4551-6) was repealed by Acts 1968, ch. 152, § 168.

CHAPTER 21A Supreme Court of Kentucky

21A.010. Supreme Court districts.

The Commonwealth is divided into seven (7) Supreme Court districts composed as follows:

  1. First District: Ballard, Caldwell, Calloway, Carlisle, Christian, Crittenden, Daviess, Fulton, Graves, Henderson, Hickman, Hopkins, Livingston, Logan, Lyon, Marshall, McCracken, McLean, Muhlenberg, Todd, Trigg, Union, and Webster Counties.
  2. Second District: Allen, Barren, Breckinridge, Bullitt, Butler, Edmonson, Grayson, Hancock, Hardin, Hart, Larue, Meade, Monroe, Simpson, Spencer, Ohio, and Warren Counties.
  3. Third District: Adair, Anderson, Bell, Boyle, Casey, Clinton, Cumberland, Garrard, Green, Harlan, Knox, Laurel, Lincoln, Marion, McCreary, Mercer, Metcalfe, Nelson, Pulaski, Rockcastle, Russell, Taylor, Washington, Wayne, and Whitley Counties.
  4. Fourth District: Jefferson County.
  5. Fifth District: Bourbon, Clark, Fayette, Franklin, Jessamine, Madison, Scott, and Woodford Counties.
  6. Sixth District: Boone, Bracken, Campbell, Carroll, Gallatin, Grant, Henry, Kenton, Oldham, Owen, Pendleton, Shelby, and Trimble Counties.
  7. Seventh District: Bath, Boyd, Breathitt, Carter, Clay, Elliott, Estill, Fleming, Floyd, Greenup, Harrison, Jackson, Johnson, Knott, Lawrence, Lee, Leslie, Letcher, Lewis, Magoffin, Martin, Mason, Menifee, Montgomery, Morgan, Nicholas, Owsley, Perry, Pike, Powell, Robertson, Rowan, and Wolfe Counties.

HISTORY: Enact. Acts 1976, ch. 67, § 2, effective March 23, 1976; 1984, ch. 185, § 2, effective April 3, 1984; 1991 (2nd Ex. Sess.), ch. 2, § 1, effective December 20, 1991; 2022 ch. 5, § 1, effective January 18, 2022.

Research References and Practice Aids

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 13.

Kentucky Law Journal.

Render, On Unpublished Opinions, 73 Ky. L.J. 145 (1984-85).

21A.020. Election of justices, when held.

Elections for Justices of the Supreme Court shall be held at the regular elections, and every eight (8) years thereafter, as follows:

  1. In the fifth district, in 1976;
  2. In the third district, in 1978;
  3. In the seventh district, in 1980; and
  4. In the first, second, fourth and sixth districts, in 1982.

History. Enact. Acts 1976, ch. 67, § 3, effective March 23, 1976.

Research References and Practice Aids

Kentucky Bench & Bar.

Bartlett, The Selection and Election of Judges in Kentucky, Vol. 53, No. 3, Summer 1989, Ky. Bench & Bar 26.

21A.030. Clerk of Supreme Court — Appointment, duties, fee schedule, assistants — Annual audit.

  1. The clerk of the Supreme Court shall be appointed by the court to serve at its pleasure. The annual salary of the clerk shall be fixed by the General Assembly.
  2. Before entering upon the duties of his office, the clerk shall take the oath of office prescribed by the Constitution.
  3. The clerk shall perform such duties as the Supreme Court may assign, and shall be bonded to the Commonwealth, for faithful performance of duty, in such manner and in such amount as the Supreme Court shall determine.
  4. The clerk may appoint assistants in the number and at the salaries fixed by the Supreme Court.
  5. The Supreme Court shall adopt a seal. The clerk shall be the keeper of the seal and shall use it upon such documents as the Supreme Court may require.
  6. A fee schedule for services rendered by the clerk shall be fixed by rule of the Supreme Court, except that charges to litigants for the reproduction of appellate records and briefs shall be fixed and administered by the clerk. All fees collected by the clerk shall be remitted to the State Treasury.
  7. The Auditor of Public Accounts shall audit the financial accounts of the clerk at least once every year.

History. Enact. Acts 1976, ch. 67, § 4, effective March 23, 1976.

Legislative Research Commission Notes.

Acts 1976, ch. 67, § 15, provides that KRS 21A.030(1) and (4) shall become effective on the first Monday in January, 1980, or on any earlier date upon which the constitutional office of clerk of the Supreme Court becomes vacant.

21A.040. Enforcement of mandates.

The Supreme Court may enforce its mandates by fine or imprisonment, or both.

History. Enact. Acts 1976, ch. 67, § 5, effective March 23, 1976.

21A.050. Reversal or modification of judgments — Procedures for appeal.

  1. A judgment, order or decree of a lower court may be reversed, modified or set aside by the Supreme Court for errors appearing in the record.
  2. The method of bringing a judgment, order or decree of a lower court to the Supreme Court for review shall be established by Supreme Court rule. The procedures for appellate review shall be established by the Rules of Civil Procedure, Rules of Criminal Procedure and other rules promulgated by the Supreme Court.

History. Enact. Acts 1976, ch. 67, § 6, effective March 23, 1976.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Collier, Criminal Procedure, 68 Ky. L.J. 655 (1979-1980).

Treatises

Petrilli, Kentucky Family Law, Dissolution Decree, § 24.27.

21A.060. Effect of equal division of court.

If the Supreme Court is equally divided in the decision of a case, the judgment, order or decree of the lower court shall stand affirmed.

History. Enact. Acts 1976, ch. 67, § 7, effective March 23, 1976.

21A.070. Publication of opinions.

  1. All opinions of the Supreme Court shall be published.
  2. The Supreme Court shall determine which opinions of the Court of Appeals and lower courts shall be published.
  3. The Supreme Court shall select the method of publication and the publisher or publishers of the opinions of the Court of Justice.
  4. There shall be no copyright of the opinions.

History. Enact. Acts 1976, ch. 67, § 8, effective March 23, 1976.

Research References and Practice Aids

Kentucky Law Journal.

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

Render, On Unpublished Opinions, 73 Ky. L.J. 145 (1984-85).

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

21A.080. Process, to whom directed.

The original or final process of the Supreme Court may be directed to the sheriff of any county.

History. Enact. Acts 1976, ch. 67, § 9, effective March 23, 1976.

21A.090. Security personnel and services for Court of Justice.

  1. At the request of the Chief Justice, the Governor may provide through the Department of Kentucky State Police such security personnel and services for the Supreme Court and Court of Appeals as shall be necessary.
  2. When the Chief Justice, in his discretion, believes that local law enforcement personnel should be supplemented or superseded by the State Police, the Governor may provide through the Department of Kentucky State Police the necessary security personnel and services for any person or facility in the Court of Justice.
  3. Department of Kentucky State Police officers serving the Court of Justice pursuant to subsection (1) or (2) of this section shall have statewide authority when performing any duty related to the Court of Justice.

History. Enact. Acts 1976, ch. 67, § 10, effective March 23, 1976; 1978, ch. 384, § 538, effective June 17, 1978; 2007, ch. 85, § 107, effective June 26, 2007.

21A.100. Court of Appeals records become Supreme Court records.

The records of the Court of Appeals involving proceedings before that court, prior to January 1, 1976, shall become part of the permanent records of the Supreme Court. Such records shall be given the same faith and credit as are records of the Supreme Court.

History. Enact. Acts 1976, ch. 67, § 11, effective March 23, 1976.

21A.110. Retired justice or judge serving as special judge — Compensation — Expenses.

Any retired justice or judge assigned to active judicial service pursuant to Section 110(5)(b) of the Constitution shall be compensated for his or her service as follows:

  1. The salary for each day which the justice or judge serves shall be as set by the Supreme Court pursuant to KRS § 48.195 and in accordance with its rules, not to exceed 1/260 of the annual salary for a Circuit Judge regardless of the judicial office in which he or she performs the judicial duties; and
  2. Necessary expenses incidental to the performance of the duties of such assignment shall be paid out of the State Treasury upon approval by the Chief Justice or his designee.

HISTORY: Enact. Acts 1976, ch. 67, § 12, effective March 23, 1976; 1998, ch. 447, § 1, effective July 15, 1998; 2015 ch. 12, § 1, effective June 24, 2015.

21A.120. Special justice of Supreme Court — Qualifications — Compensation — Expenses.

  1. If it becomes necessary for the Governor to appoint a justice to the Supreme Court pursuant to Section 110(3) of the Constitution, a person so appointed shall possess the qualifications of a Supreme Court Justice.
  2. The salary for each day which the justice serves shall be 1/250 of the annual salary of a Justice of the Supreme Court, except that a retired justice or judge appointed pursuant to this section shall be compensated as provided by KRS 21A.110 and not under this section.
  3. Salary and necessary expenses incidental to the performance of the duties of such assignment shall be paid out of the State Treasury upon approval by the Chief Justice, or his designee.

History. Enact. Acts 1976, ch. 67, § 13, effective March 23, 1976.

21A.130. Board of Bar Examiners — Compensation and expenses.

  1. To assist in the evaluation of applicants for admission to the practice of law, the Supreme Court may appoint a Board of Bar Examiners.
  2. The Supreme Court shall make reasonable allowances to each member of the Board of Bar Examiners for his services, for necessary clerical assistance and for necessary expenses incurred in the performance of his duties, such allowances to be paid at such times as the court directs. The court may make allowances to other persons for services and expenses necessary or proper in connection with the conducting of examinations of applicants for admission to practice law. The allowances provided for in this subsection shall be paid out of such appropriation as is made for the purpose.

History. Enact. Acts 1976, ch. 58, §§ 3, 4(2).

NOTES TO DECISIONS

1.Constitutionality.

This section, and KRS 21A.140 to 21A.160 are void because they purport to erect powers and limitations that no longer fall within the legislative province since the 1975 amendment to Const., § 116, completely removed the authority to regulate the legal profession from the legislature and authorized the Supreme Court to exercise that authority. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

Research References and Practice Aids

Cross-References.

Board of Bar Examiners, SCR 2.000.

21A.140. Disposition of fees paid for admission to practice of law.

Any fees fixed by the Supreme Court to be paid by applicants for admission to the practice of law and for the issuance of a license to practice law shall be promptly paid into the State Treasury by the person, officer, or agency designated by the Supreme Court to receive or collect the fees.

History. Enact. Acts 1976, ch. 58, § 4(1); 1994, ch. 87, § 2, effective July 15, 1994; 1996, ch. 348, § 2, effective July 15, 1996.

NOTES TO DECISIONS

1.Constitutionality.

KRS 21A.130 , this section, KRS 21A.150 and KRS 21A.160 are void because they purport to erect powers and limitations that no longer fall within the legislative province since the 1975 amendment to Const., § 116, completely removed the authority to regulate the legal profession from the legislature and authorized the Supreme Court to exercise that authority. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

Research References and Practice Aids

Cross-References.

Fees to be paid by applicants for admission to practice law, SCR 2.020 .

21A.150. Powers of Kentucky Bar Association in disciplinary proceedings.

As deemed necessary in the exercise of its power to discipline attorneys, as granted by Section 116 of the Constitution, the Supreme Court may authorize the Kentucky Bar Association to conduct hearings, administer necessary oaths, take testimony under oath, compel the attendance of witnesses, and compel the production of records and other evidence.

History. Enact. Acts 1976, ch. 58, § 5.

NOTES TO DECISIONS

1.Constitutionality.

KRS 21A.130 , KRS 21A.140 , this section and KRS 21A.160 are void because they purport to erect powers and limitations that no longer fall within the legislative province since the 1975 amendment to Const., § 116, completely removed the authority to regulate the legal profession from the legislature and authorized the Supreme Court to exercise that authority. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

Research References and Practice Aids

Cross-References.

Procedure in disciplinary proceedings, SCR 3.140 et seq.

21A.160. Organization and control of state bar vested in Supreme Court.

The Supreme Court has power to provide for the organization, government and membership of the state bar of Kentucky and to adopt rules and regulations to govern conduct and activity of the state bar and its members.

History. Enact. Acts 1976, ch. 58, § 6.

NOTES TO DECISIONS

1.Constitutionality.

KRS 21A.130 , KRS 21A.140 , KRS 21A.150 and this section are void because they purport to erect powers and limitations that no longer fall within the legislative province since the 1975 amendment to Const., § 116, completely removed the authority to regulate the legal profession from the legislature and authorized the Supreme Court to exercise that authority. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

Research References and Practice Aids

Cross-References.

Kentucky Rules of Professional Conduct, SCR 3.130.

21A.170. In-service training for judges, domestic relations commissioners, and trial commissioners on child sexual abuse, domestic violence, and crimes against the elderly.

The Supreme Court shall provide, at least once every two (2) years, in-service training programs for Circuit Judges, District Judges, and domestic relations and trial commissioners in:

  1. Child development, the dynamics of physical and sexual abuse, the impact of violence on child development, the treatment of offenders, and related issues;
  2. Dynamics of domestic violence, effects of domestic violence on adult and child victims, legal remedies for protection, lethality and risk issues, model protocols for addressing domestic violence, available community resources and victims services, and reporting requirements; and
  3. Dynamics of crimes against the elderly, including but not limited to elder abuse, neglect, and exploitation; the effects of these crimes on the elderly, institutions in which they may reside, and their families; legal remedies for protection; lethality and risk issues; financial implications; model protocols for addressing elder abuse, neglect, and exploitation and other crimes against the elderly; available community resources and victims services; and reporting requirements.

Each Circuit Judge, District Judge, and trial and domestic relations commissioner shall successfully complete the training prescribed by the Supreme Court by rule.

History. Enact. Acts 1992, ch. 351, § 8, effective July 14, 1992; 1996, ch. 54, § 10, effective July 15, 1996; 2005, ch. 132, § 15, effective June 20, 2005.

21A.180. Training for judges, domestic relations commissioners, and trial commissioners on adult abuse, neglect, and exploitation investigations and prosecutions.

The Administrative Office of the Courts, under the direction of the Supreme Court, shall develop training for Circuit Judges, District Judges, and domestic relations and trial commissioners on investigation and prosecution of cases of adult abuse, neglect, and exploitation and on the investigation and services provided under KRS Chapter 209. This multidisciplinary training shall specify the roles and responsibilities of Circuit Judges, District Judges, and domestic relations and trial commissioners, and employees in their respective offices, with respect to the investigations and prosecutions of these cases.

History. Enact. Acts 2005, ch. 132, § 14, effective June 20, 2005.

21A.190. Pilot project to study the feasibility and desirability of conducting some open juvenile proceedings.

  1. The General Assembly respectfully requests that the Supreme Court of Kentucky institute a pilot project to study the feasibility and desirability of the opening or limited opening of court proceedings, except for proceedings related to sexual abuse, to the public which are related to:
    1. Dependency, neglect, and abuse proceedings under KRS Chapter 620; and
    2. Termination of parental rights proceedings under KRS Chapter 625.
    1. The pilot project may be established in a minimum of three (3) diverse judicial districts or judicial circuits or a division or divisions thereof chosen by the Chief Justice. (2) (a) The pilot project may be established in a minimum of three (3) diverse judicial districts or judicial circuits or a division or divisions thereof chosen by the Chief Justice.
    2. A pilot project authorized by this subsection shall not be established in a judicial district or judicial circuit or a division thereof when objected to by the applicable judge or county attorney.
  2. The pilot project shall:
    1. Require participating courts to be presumptively open;
    2. Last for four (4) years, unless extended or limited by the General Assembly; and
    3. Be monitored and evaluated by the Administrative Office of the Courts to determine:
      1. Whether there are adverse effects resulting from the opening of certain proceedings or release of records;
      2. Whether the pilot project demonstrates a benefit to the litigants;
      3. Whether the pilot project demonstrates a benefit to the public;
      4. Whether the pilot project supports a determination that such proceedings should be presumptively open;
      5. Whether the pilot project supports a determination that such proceedings should be closed;
      6. How open proceedings under the pilot project impact the child;
      7. The parameters and limits of the program;
      8. Suggestions for the operation and improvement of the program;
      9. Rules changes which may be needed if the program is to be made permanent and expanded to all courts; and
      10. Recommendations for statutory changes which may be needed if the program is to be made permanent and expanded to all courts.
  3. The Administrative Office of the Courts:
    1. Shall provide an annual report to the Legislative Research Commission, the Child Welfare Oversight and Advisory Committee established in KRS 6.943 , and the Interim Joint Committee on Judiciary by September 1 of each year the program is in operation with statistics, findings, and recommendations; and
    2. May make periodic progress reports and statistical reports and provide suggestions to the Interim Joint Committee on Health and Welfare and to the Interim Joint Committee on Judiciary when determined necessary by the Chief Justice.

HISTORY: 2016 ch. 76, § 1, effective July 15, 2016; 2018 ch. 159, § 48, effective July 14, 2018.

21A.192. Procedures for courts participating in pilot project authorized by KRS 21A.190.

  1. A court chosen for the pilot project authorized by KRS 21A.190 shall, subject to written authorization by the Chief Justice:
    1. Open all or some of its proceedings to the public relating to cases identified in KRS 21A.190 (1), subject to subsection (2) of this section;
    2. Set parameters for members of the public related to attendance at open proceedings and the information obtained during the proceedings; and
    3. Establish a procedure to require each member of the public attending a proceeding not to disclose the name or personal identifying information regarding any person who is a party to the proceeding, or person testifying at the proceeding.
    1. A court chosen for the pilot project authorized by KRS 21A.190 may close the hearing or any part thereof upon motion of a party or upon its own motion if the court determines that closure is in the best interest of the child, the public, or for other good cause shown. The party seeking closure shall have the burden of proof. (2) (a) A court chosen for the pilot project authorized by KRS 21A.190 may close the hearing or any part thereof upon motion of a party or upon its own motion if the court determines that closure is in the best interest of the child, the public, or for other good cause shown. The party seeking closure shall have the burden of proof.
    2. In considering whether closure of a hearing is in the best interest of the child or the public, the court shall give priority to the best interest of the child. The court shall also consider all relevant circumstances of the case, including but not limited to:
      1. The nature of the allegations;
      2. The age and maturity level of the child;
      3. The benefit to the child, family, and public of maintaining confidentiality;
      4. The benefit to the public of an open hearing;
      5. The effect of confidentiality on the fact-finding process;
      6. The wishes of the parties, victims, and the parents of any children involved in the case; and
      7. Whether reasonable alternatives to closure are available.
    3. The court shall make written findings of fact and conclusions of law to support an order of closure, and any order of closure shall be no broader than is necessary to protect the interests asserted by the party seeking closure.
  2. Unless otherwise authorized by law, a court chosen for the pilot project authorized by KRS 21A.190 shall not:
    1. Release any record discussed at any open proceeding authorized by KRS 21A.190 , prior to, at, or after the proceeding which is made confidential pursuant to law;
    2. Permit audio, visual, or other recording of the proceedings by any person who is attending the proceeding, a party to the proceeding, or testifying at the proceeding;
    3. Permit any audio, visual, or other recording of the proceedings for official court purposes to be made a public record, copied, or released to the public; or
    4. Permit any member of the public attending the proceeding, who is not a party to the proceeding, or who is not testifying at the proceeding, to disclose the name or personal identifying information of any person who is a party to a proceeding or testifying at a proceeding, outside of the courtroom.
  3. A person may take written notes during a hearing, as provided in KRS 21A.190 , and remove them from the courtroom following the hearing provided that no name or personal identifying information of any minor who is a party to the proceeding or testifying at the proceeding shall be taken from the courtroom. The provisions of this subsection are not intended to apply to, and shall not limit the use or publication of, any information obtained by means other than attendance at a proceeding authorized by this section.

HISTORY: 2016 ch. 76, § 2, effective July 15, 2016.

21A.300. Prohibition against solicitation of professional employment from victim or relative of victim of accident or disaster.

  1. Notwithstanding KRS 21A.160 , for a period of thirty (30) days following the filing of a criminal or civil action, or claim for damages, or a traffic citation, injury, accident, or disaster, an attorney or an attorney referral service shall be subject to the following prohibition. An attorney or an attorney referral service shall not directly solicit, or knowingly permit another person to directly solicit on his or its behalf, a victim of the accident or disaster, or a relative of the victim, for the purpose of obtaining professional employment relating to a criminal or civil action, or claim for damages, arising out of the traffic citation, injury, accident, or disaster.
  2. Notwithstanding KRS 21A.160 , an attorney shall not knowingly accept a referral from an attorney referral service when that referral has resulted from the attorney referral service violating the prohibition established in subsection (1) of this section.

History. Enact. Acts 1996, ch. 192, § 1, effective July 15, 1996.

NOTES TO DECISIONS

1.Constitutionality.

The Kentucky General Assembly did not violate separation-of-powers principles by enacting KRS 21A.300 and 21A.310(1), which impose criminal sanctions on practicing attorneys who solicit accident or disaster victims by direct mail within 30 days of the event. Chambers v. Stengel, 37 S.W.3d 741, 2001 Ky. LEXIS 30 ( Ky. 2001 ) (on certification from the Sixth Circuit Court of Appeals).

The 30 day prohibition of attorney solicitation of victims of an accident, injury, or disaster is not vague and, therefore, does not violate the due process clause of the federal constitution because (1) the terms “solicit,” “victim,” “accident or disaster,” and “general public” are common terms, and individuals of common intelligence do not have to guess at their meaning, and (2) the statute sufficiently sets out the conduct prohibited such that it gives fair notice to citizens and does not encourage arbitrary or discriminatory enforcement by police, judges, or juries. Chambers v. Stengel, 256 F.3d 397, 2001 FED App. 0212P, 2001 U.S. App. LEXIS 15393 (6th Cir. Ky. 2001 ).

The 30 day prohibition of attorney solicitation of victims of an accident, injury, or disaster is not vague and, therefore, does not violate the equal protection clause of the federal constitution because (1) the state has a substantial interest in protecting both the privacy of its citizens and the reputation of its attorneys, and (2) the statute is narrowly fashioned to advance such interests. Chambers v. Stengel, 256 F.3d 397, 2001 FED App. 0212P, 2001 U.S. App. LEXIS 15393 (6th Cir. Ky. 2001 ).

The 30 day prohibition of attorney solicitation of victims of an accident, injury, or disaster is not an unreasonable regulation of commercial speech since (1) the record contained more than mere speculation and conjecture, and the state’s interests in protecting the privacy of its citizens and the reputation of its attorneys were directly and materially advanced by the statute, (2) there existed a reasonable fit between the legislature’s goal and the means chose to accomplish it, even if the statute did not employ the least restrictive means necessary. Chambers v. Stengel, 256 F.3d 397, 2001 FED App. 0212P, 2001 U.S. App. LEXIS 15393 (6th Cir. Ky. 2001 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Professional Responsibility, 29 N. Ky. L. Rev. 35 (2002).

21A.310. Penalties for violation of KRS 21A.300.

  1. Notwithstanding KRS 21A.160 , any person violating any provision of KRS 21A.300 shall, upon conviction, be guilty of a Class A misdemeanor.
  2. The Kentucky Supreme Court may discipline any attorney who violates any provision of KRS 21A.300 .
  3. A penalty may be imposed on an attorney pursuant to subsection (1) of this section, subsection (2) of this section, or both subsections.

HISTORY: Enact. Acts 1996, ch. 192, § 2, effective July 15, 1996; 2011, ch. 69, § 2, effective June 8, 2011; 2015 ch. 46, § 4, effective June 24, 2015.

NOTES TO DECISIONS

1.Constitutionality.

The Kentucky General Assembly did not violate separation-of-powers principles by enacting KRS 21A.300 and 21A.310(1), which impose criminal sanctions on practicing attorneys who solicit accident or disaster victims by direct mail within 30 days of the event. Chambers v. Stengel, 37 S.W.3d 741, 2001 Ky. LEXIS 30 ( Ky. 2001 ) (on certification from the Sixth Circuit Court of Appeals).

The 30 day prohibition of attorney solicitation of victims of an accident, injury, or disaster is not vague and, therefore, does not violate the due process clause of the federal constitution because (1) the terms “solicit,” “victim,” “accident or disaster,” and “general public” are common terms, and individuals of common intelligence do not have to guess at their meaning, and (2) the statute sufficiently sets out the conduct prohibited such that it gives fair notice to citizens and does not encourage arbitrary or discriminatory enforcement by police, judges, or juries. Chambers v. Stengel, 256 F.3d 397, 2001 FED App. 0212P, 2001 U.S. App. LEXIS 15393 (6th Cir. Ky. 2001 ).

The 30 day prohibition of attorney solicitation of victims of an accident, injury, or disaster does not violate the equal protection clause of the federal constitution because (1) the state has a substantial interest in protecting both the privacy of its citizens and the reputation of its attorneys, and (2) the statute is narrowly fashioned to advance such interests. Chambers v. Stengel, 256 F.3d 397, 2001 FED App. 0212P, 2001 U.S. App. LEXIS 15393 (6th Cir. Ky. 2001 ).

The 30 day prohibition of attorney solicitation of victims of an accident, injury, or disaster is not an unreasonable regulation of commercial speech since (1) the record contained more than mere speculation and conjecture, and the state’s interests in protecting the privacy of its citizens and the reputation of its attorneys were directly and materially advanced by the statute, (2) there existed a reasonable fit between the legislature’s goal and the means chose to accomplish it, even if the statute did not employ the least restrictive means necessary. Chambers v. Stengel, 256 F.3d 397, 2001 FED App. 0212P, 2001 U.S. App. LEXIS 15393 (6th Cir. Ky. 2001 ).

Research References and Practice Aids

Cross-References.

Classification of offenses; penalties, see KRS 532.020 .

Northern Kentucky Law Review.

Professional Responsibility, 29 N. Ky. L. Rev. 35 (2002).

21A.320. Permissible types of solicitation.

Nothing contained in KRS 21A.300 and 21A.310 shall prohibit an attorney or attorney referral service from:

  1. Soliciting employment by advertising directed to the general public; or
  2. Accepting representation of a client who has contacted the lawyer as the result of a recommendation or referral by a friend, neighbor, relative, or acquaintance not acting at the specific request or instigation of:
    1. The lawyer; or
    2. Anyone acting, with the lawyer’s actual knowledge, on the lawyer’s behalf.

History. Enact. Acts 1996, ch. 192, § 3, effective July 15, 1996.

21A.350. Weighted caseload analysis of need to increase, decrease, or rearrange circuits or districts or reallocate judges — Certification of necessity.

  1. Beginning in 2020 and  every eight (8) years thereafter, the Supreme Court may direct the  Administrative Office of the Courts to perform a weighted caseload  analysis to determine the need to reduce, increase, or rearrange the  Commonwealth’s judicial circuits and districts, to reallocate  the assignment of judges, or to modify the number of judges relative  to their respective populations or caseloads. This analysis shall  include caseload totals by case type and case weight and the total  number of judges necessary for the Commonwealth’s judicial  circuits and districts.
  2. The Supreme Court shall  submit any weighted caseload analysis performed under subsection (1)  of this section to the General Assembly by December 31 of the year  in which the analysis is performed. If the analysis indicates a need  to reduce, increase, or rearrange the judicial circuits or districts,  to reallocate the assignment of judges, or to modify the number of  judges due to population or caseload changes, a certification of necessity  shall be submitted as required by Sections 112 and 113 of the Constitution  of Kentucky, which may include a proposed redrawing of circuit or  district boundaries, reallocation of the assignment of judges, or  modification of the number of judges.

HISTORY: 2018 ch. 57, § 1, effective July 14, 2018.

CHAPTER 22 Judicial Council And Judicial Conference [Repealed]

22.010. Members — Presiding officer. [Repealed.]

Compiler’s Notes.

This section (1126a-1) was repealed by Acts 1950, ch. 208, § 8.

22.020. Meetings — Who required to attend. [Repealed.]

Compiler’s Notes.

This section (1126a-2, 1126a-5) was repealed by Acts 1950, ch. 208, § 8.

22.030. Duties — Reports to Council and to Legislature — Hearings. [Repealed.]

Compiler’s Notes.

This section (1126a-3, 1126a-4) was repealed by Acts 1950, ch. 208, § 8.

22.040. Compensation of members — Expenses. [Repealed.]

Compiler’s Notes.

This section (1126a-6, 1126a-7) was repealed by Acts 1950, ch. 208, § 8; subsec. (1) was also repealed by Acts 1950, ch. 123, § 29.

22.050. Judicial council — Membership — Chief justice — Terms — Vacancies. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 208, § 1; 1956, ch. 79, § 1) was repealed by Acts 1976, ch. 61, § 12. For present law see KRS 27A.010 to 27A.130 .

22.060. Judicial conference — Membership — Chairman. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 208, § 2; 1970, ch. 245, § 2) was repealed by Acts 1976, ch. 61, § 12. For present law see KRS 27A.010 to 27A.130 .

22.070. Meetings of council and conference — Chairman of council. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 208, § 3; 1956, ch. 79, § 2; 1972, ch. 355, § 1) was repealed by Acts 1976, ch. 61, § 12. For present law see KRS 27A.010 to 27A.130 .

22.080. Duties of judicial council. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 208, § 4; 1960, ch. 84, Art. I, § 3) was repealed by Acts 1976, ch. 61, § 12. For present law see KRS 27A.010 to 27A.130 .

22.090. Duties of judicial conference. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 208, § 5) was repealed by Acts 1976, ch. 61, § 12. For present law see KRS 27A.010 to 27A.130 .

22.100. Expenses of members of council and conference. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 208, § 6; 1972, ch. 355, § 2) was repealed in part by Acts 1960, ch. 84, Art. I, sec. 4 and by Acts 1976, ch. 61, § 12. For present law see KRS 27A.010 to 27A.130 .

22.110. Administrative office of the courts established — Director — Other employes. [Repealed.]

Compiler’s Notes.

This section (1960, ch. 84, Art. I, § 1) was repealed by Acts 1976, ch. 61, § 12. For present law see KRS 27A.010 to 27A.130 .

22.120. Duties of director. [Repealed.]

Compiler’s Notes.

This section (1960, ch. 84, Art. I, § 2) was repealed by Acts 1976, ch. 61, § 12. For present law see KRS 27A.010 to 27A.130 .

CHAPTER 22A Court of Appeals

22A.010. Numbers of judges — Districts.

  1. The Court of Appeals shall consist of fourteen (14) judges, with two (2) judges from each of seven (7) Court of Appeals districts.
  2. The districts of the Court of Appeals shall correspond in geographical dimensions to the districts of the Supreme Court, as defined in KRS Chapter 21A.

History. Enact. Acts 1976, ch. 70, § 2, effective March 23, 1976.

NOTES TO DECISIONS

1.Apportionment of Districts.

A convicted felon will not suffer irreparable damage if the appeal of his criminal conviction will be heard before the Court of Appeals that he alleges is malapportioned under law establishing appellate court districts, so that a federal court cannot intervene pending the state court appeal. Scott v. Hill, 449 F.2d 634, 1971 U.S. App. LEXIS 7706 (6th Cir. 1971), cert. denied, 405 U.S. 928, 92 S. Ct. 979, 30 L. Ed. 2d 801, 1972 U.S. LEXIS 3729 (1972), cert. denied, Scott v. Hill, 405 U.S. 928, 92 S. Ct. 979, 30 L. Ed. 2d 801, 1972 U.S. LEXIS 3729 (1972) (Decided under prior law).

The question of whether the “one-man, one-vote” rule applied to the election of the Kentucky Court of Appeals judges under former law establishing appellate court districts presented a substantial constitutional question which, in a proper case, should be heard by a three-judge district court. Scott v. Hill, 449 F.2d 634, 1971 U.S. App. LEXIS 7706 (6th Cir. 1971), cert. denied, 405 U.S. 928, 92 S. Ct. 979, 30 L. Ed. 2d 801, 1972 U.S. LEXIS 3729 (1972), cert. denied, Scott v. Hill, 405 U.S. 928, 92 S. Ct. 979, 30 L. Ed. 2d 801, 1972 U.S. LEXIS 3729 (1972) (Decided under prior law).

The “one-man, one-vote” principle should not and does not apply to the judiciary. Kentucky State Bar Asso. v. Taylor, 482 S.W.2d 574, 1972 Ky. LEXIS 195 ( Ky. 1972 ) (Decided under prior law).

Cited:

Commonwealth v. Cooper, 899 S.W.2d 75, 1995 Ky. LEXIS 77 ( Ky. 1995 ).

Research References and Practice Aids

Cross-References.

Assignment of new county to districts, KRS 67.280 .

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 13.

Bartlett, The Selection and Election of Judges in Kentucky, Vol. 53, No. 3, Summer 1989, Ky. Bench & Bar 26.

22A.020. Jurisdiction — Appeal procedures.

  1. Except as provided in Section 110 of the Constitution, an appeal may be taken as a matter of right to the Court of Appeals from any conviction, final judgment, order, or decree in any case in Circuit Court, including a family court division of Circuit Court, unless such conviction, final judgment, order, or decree was rendered on an appeal from a court inferior to Circuit Court.
  2. The Court of Appeals has jurisdiction to review interlocutory orders of the Circuit Court in civil cases, but only as authorized by rules promulgated by the Supreme Court.
  3. Notwithstanding any other provision in this section, there shall be no review by appeal or by writ of certiorari from that portion of a final judgment, order or decree of a Circuit Court dissolving a marriage.
  4. An appeal may be taken to the Court of Appeals by the state in criminal cases from an adverse decision or ruling of the Circuit Court, but only under the following conditions:
    1. Such appeal shall not suspend the proceedings in the case.
    2. Such appeal shall be taken in the manner provided by the Rules of Criminal Procedure and the Rules of the Supreme Court, except that the record on appeal shall be transmitted by the clerk of the Circuit Court to the Attorney General; and if the Attorney General is satisfied that review by the Court of Appeals is important to the correct and uniform administration of the law, he may deliver the record to the clerk of the Court of Appeals within the time prescribed by the above-mentioned rules.
    3. When an appeal is taken pursuant to this subsection, the Court of Appeals, if the record so warrants, may reverse the decision of the Circuit Court and order a new trial in any case in which a new trial would not constitute double jeopardy or otherwise violate any constitutional rights of the defendant.
  5. Any party aggrieved by the judgment of the Circuit Court in a case appealed from a court inferior thereto may petition the Court of Appeals for a writ of certiorari.

History. Enact. Acts 1976, ch. 70, § 3, effective March 23, 1976; 2003, ch. 66, § 16, effective June 24, 2003.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

Since under §§ 109 and 116 of the Constitution the Supreme Court only has the power to prescribe rules governing appellate procedure and jurisdiction and since the only restriction on appeal by the Commonwealth set forth by the Constitution of Kentucky, as stated in § 115, is that the Commonwealth may not appeal from a judgment of acquittal in a criminal case for any purpose other than securing a certification of the law; therefore, when the legislature, by enactment of subsection (4) of this section, attempted to establish rules of appellate procedure, it acted contrary to the dictates of the Constitution. Commonwealth v. Schumacher, 566 S.W.2d 762, 1978 Ky. App. LEXIS 524 (Ky. Ct. App. 1978), disapproved, Commonwealth v. Littrell, 677 S.W.2d 881, 1984 Ky. LEXIS 285 ( Ky. 1984 ).

Although a trial court’s decision was not a final order, KRS 22A.020(4) allowed the Commonwealth to take an interlocutory appeal. Section 22A.020(4) did not violate Ky. Const. § 2 even though it was solely for the benefit of the Commonwealth as it furthered the Commonwealth’s legitimate interest in the administration of justice. Ballard v. Commonwealth, 320 S.W.3d 69, 2010 Ky. LEXIS 206 ( Ky. 2010 ).

2.Construction.

“Rendered on an appeal from a court inferior to Circuit Court” is construed as referring only to decisions of the Circuit Court made while sitting as an appellate review court, and not to those made sitting as a trial court. Taylor v. Commonwealth, 568 S.W.2d 52, 1978 Ky. App. LEXIS 546 (Ky. Ct. App. 1978).

3.Original Jurisdiction.

Court of Appeals does not have original jurisdiction to enjoin sale of property under judgment. (Decided under prior law) Allensworth v. Allensworth's Ex'x, 240 Ky. 333 , 42 S.W.2d 329, 1931 Ky. LEXIS 392 ( Ky. 1931 ).

4.Interlocutory Rulings.

A Commonwealth’s Attorney seeking an appeal of discretionary rulings within a trial court’s jurisdiction has a remedy under subsection (4) of this section and, in this connection, the term “proceedings” as used in subdivision (4)(a) of this section is construed as referring to proceedings after the attachment of jeopardy, so that, unless the constitutional right to a speedy trial were unduly threatened, there is no reason why an interlocutory “ruling” entered prior to trial, if it decides a matter vital to the Commonwealth’s case, could not be reviewed by appeal. Eaton v. Commonwealth, 562 S.W.2d 637, 1978 Ky. LEXIS 334 ( Ky. 1978 ).

Whereas this section authorizes the Commonwealth to appeal from an interlocutory order, there is no comparable provision for an appeal by the defendant. Evans v. Commonwealth, 645 S.W.2d 346, 1982 Ky. LEXIS 330 ( Ky. 1982 ).

This section gives the Commonwealth the authority to appeal from interlocutory orders under certain conditions. Those conditions are that (a) the appeal will not stay the proceedings, and (b) the defendant’s constitutional rights to a speedy trial and against double jeopardy are not violated. Commonwealth v. Evans, 645 S.W.2d 350, 1982 Ky. App. LEXIS 280 (Ky. Ct. App.), aff'd, 645 S.W.2d 346, 1982 Ky. LEXIS 330 ( Ky. 1982 ).

The Supreme Court has construed subsection (4) of this section to permit an appeal of an interlocutory ruling only if the ruling decides a matter vital to the Commonwealth’s case; where the ruling vital to the prosecution’s case was the order suppressing evidence of the statements by the deceased officer, this order was properly appealable, but the ruling denying reconsideration did the prosecution no further damage and was not appealable. Commonwealth v. Cobb, 728 S.W.2d 540, 1987 Ky. App. LEXIS 472 (Ky. Ct. App. 1987), overruled in part, Parker v. Commonwealth, 440 S.W.3d 381, 2014 Ky. LEXIS 432 ( Ky. 2014 ).

Unquestionably, this section provides for interlocutory appeals but only from Circuit Court, not to Circuit Court from District Court. The proper procedure for appeals from District Court is governed by KRS 23A.080 . Tipton v. Commonwealth, 770 S.W.2d 239, 1989 Ky. App. LEXIS 38 (Ky. Ct. App. 1989), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ), abrogated in part, Commonwealth v. Lamberson, 2007 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Nov. 9, 2007).

An interlocutory appeal by the Commonwealth does not require the continuance of pre-trial proceedings until the determination of the appeal and, therefore, the trial court did not improperly dismiss a criminal proceeding against the defendant where (1) the court issued an order stating that the case would be dismissed in 60 days if the Commonwealth did not proceed to trial; (2) the Commonwealth failed to seek intermediate relief from the Court of Appeals following entry of such order; and (3) the Commonwealth took no steps to avoid dismissal of the action. Commonwealth v. Blincoe, 33 S.W.3d 533, 2000 Ky. App. LEXIS 146 (Ky. Ct. App. 2000), overruled in part, Smith v. Commonwealth, 636 S.W.3d 421, 2021 Ky. LEXIS 421 ( Ky. 2021 ).

Interlocutory appeal, under KRS 22A.020 , may only be taken from a judgment or order that has been signed by the judge and service thereof noted on the docket by the Circuit Court clerk under RCr 12.04, RCr 12.06, and CR 58; to meet these requirements, it is axiomatic that the judgment or order appealed from be reduced to writing. Commonwealth v. West, 147 S.W.3d 72, 2004 Ky. App. LEXIS 197 (Ky. Ct. App. 2004).

Oral interlocutory order was not an appealable order as it had not been signed by the judge and as no notation of service had been made on the docket. Commonwealth v. West, 147 S.W.3d 72, 2004 Ky. App. LEXIS 197 (Ky. Ct. App. 2004).

Filing of an appeal in a negligence case did not divest a trial court of jurisdiction to enter a subsequent order because the appeal was an inappropriate interlocutory appeal; only certain appeals were timely and appropriately brought, pursuant to CR 73.02 and KRS 22A.020 , 417.220 . Moctar v. Yellow Cab of Louisville, 2012 Ky. App. LEXIS 175 (Ky. Ct. App. Sept. 21, 2012), review denied, ordered not published, 2013 Ky. LEXIS 431 (Ky. Sept. 18, 2013).

An order granting a subpoena duces tecum and requiring defendant to comply therewith was interlocutory and was not appealable, however, defendant could apply to the Court of Appeals for a writ of prohibition to prevent entry of the order. (Decided under prior law) Claussner Hosiery Co. v. Paducah, 275 Ky. 149 , 120 S.W.2d 1039, 1938 Ky. LEXIS 386 ( Ky. 1938 ).

Interlocutory judgments are such as are given in the middle of a cause, upon some plea, proceeding or default, which is only intermediate, and does not finally determine or complete the suit. Final judgments are such as at once put an end to the action by declaring that the plaintiff has or has not entitled himself to the remedy sued for. (Decided under prior law) Adkins v. Carol Mining Co., 281 Ky. 328 , 136 S.W.2d 32, 1940 Ky. LEXIS 40 ( Ky. 1940 ).

An order sustaining or overruling a motion to quash the return of an officer on a summons is not a final order for the purposes of an appeal. (Decided under prior law) Bastian Bros. Co. v. Field, 280 Ky. 727 , 134 S.W.2d 648, 1939 Ky. LEXIS 213 ( Ky. 1939 ); Wallins v. Luten Bridge Co., 291 Ky. 73 , 163 S.W.2d 276, 1942 Ky. LEXIS 181 ( Ky. 1942 ).

Where, in a declaratory judgment action, the trial court sustained a demurrer to the petition and proceeded to make a declaration of rights, the plaintiff did not decline to plead further, and the petition was not dismissed, the ruling of the court was interlocutory and appeal was not proper. (Decided under prior law) Campbell v. Daugherty, 259 Ky. 372 , 82 S.W.2d 460, 1935 Ky. LEXIS 322 ( Ky. 1935 ).

Appellate court was not authorized by the Kentucky Constitution or statute to consider an appeal from an interlocutory order denying defendant immunity under this section because this section did not include a provision for allowing such an appeal. Commonwealth v. Farmer, 423 S.W.3d 690, 2014 Ky. LEXIS 17 ( Ky. 2014 ).

5.Right to Appeal.

The Kentucky two-tier trial court system with lay judicial officers in the first tier in smaller cities and an appeal of right with a de novo trial before a traditionally law-trained judge in the second does not violate either the due process or equal protection guarantees of the Constitution of the United States. (Decided under prior law)North v. Russell, 427 U.S. 328, 96 S. Ct. 2709, 49 L. Ed. 2d 534, 1976 U.S. LEXIS 76 (U.S. 1976).

The law in force at the time the appeal is prayed and not when the judgment was rendered governs the right to appeal. (Decided under prior law)Hale v. Grogan, 106 Ky. 311 , 50 S.W. 257, 20 Ky. L. Rptr. 1856 , 1899 Ky. LEXIS 44 ( Ky. 1899 ). See Terry v. Johnson, 105 Ky. 760 , 49 S.W. 767, 20 Ky. L. Rptr. 1562 , 1899 Ky. LEXIS 268 ( Ky. 1899 ); Frost v. Rowan, 56 S.W. 427, 21 Ky. L. Rptr. 1777 , 1900 Ky. LEXIS 490 ( Ky. 1900 ); Alexander v. Warner, 58 S.W. 700, 22 Ky. L. Rptr. 720 , 1900 Ky. LEXIS 692 ( Ky. 1900 ); Piper v. Spencer, 58 S.W. 815, 22 Ky. L. Rptr. 780 , 1900 Ky. LEXIS 275 (Ky. Ct. App. 1900); Gough v. Illinois C. R. Co., 166 Ky. 568 , 179 S.W. 449, 1915 Ky. LEXIS 723 ( Ky. 1915 ).

Any person may appear and resist the alteration of a public road and in doing so he makes himself a party and has the right to appeal. (Decided under prior law)Carrick v. Garth, 159 Ky. 505 , 167 S.W. 687, 1914 Ky. LEXIS 829 ( Ky. 1914 ).

The right of appeal is a privilege controlled by the legislature, as the legislature has the power to designate in what classes of cases appeals may be taken. (Decided under prior law)Morton v. Woodford, 99 Ky. 367 , 35 S.W. 1112, 18 Ky. L. Rptr. 271 , 1896 Ky. LEXIS 91 ( Ky. 1896 ). See Hale v. Grogan, 49 S.W. 464, 1899 Ky. LEXIS 449 ( Ky. 1899 ); Gough v. Illinois C. R. Co., 166 Ky. 568 , 179 S.W. 449, 1915 Ky. LEXIS 723 ( Ky. 1915 ).

No one may complain of a judgment which does not in any manner affect or touch his financial or any other rights. (Decided under prior law)Security Finance Co. v. Langan, 281 Ky. 249 , 135 S.W.2d 903, 1940 Ky. LEXIS 19 ( Ky. 1940 ).

The right to appeal from a decision of a court of competent jurisdiction to an appellate court is not inherent, but is one which must be based upon statutory authority. (Decided under prior law)Mason v. Montgomery County Board of Education, 291 Ky. 654 , 165 S.W.2d 346, 1942 Ky. LEXIS 298 ( Ky. 1942 ).

The fact that defendant, in suit to enforce execution lien on judgment against her, had unsuccessfully sought to avoid the judgment by asserting a setoff and counterclaim, could not affect her right to appeal from the judgment, so long as the appeal was taken within the time allowed. (Decided under prior law)Potts v. Potts, 299 Ky. 216 , 184 S.W.2d 987, 1945 Ky. LEXIS 398 ( Ky. 1945 ).

As a general rule, a party may not appeal from a judgment in his own favor, but in action of illegitimate child to enforce promise of father to will her certain land where judgment for money damages was taken against administrator of estate, and personal assets might be insufficient to pay the judgment in addition to the other claims against the estate, interest of heirs in the matter adjudged being direct and substantial they were necessarily aggrieved by judgment adverse to administrator and could appeal from it even though complaint had been dismissed as to them. (Decided under prior law)Miller v. Miller, 335 S.W.2d 884, 1960 Ky. LEXIS 282 ( Ky. 1960 ), limited, Cheshire v. Barbour, 455 S.W.2d 62, 1970 Ky. LEXIS 245 ( Ky. 1970 ).

Where the appellant filed a notice of appeal within the required time but it was subsequently determined that the appellant was entitled to appeal as a matter of right, the motion should not be denied, where the time for appeal as a matter of right expired during the adjudication of the controversy. (Decided under prior law)Commonwealth by Luckett v. Monson, 465 S.W.2d 717, 1970 Ky. LEXIS 96 ( Ky. 1970 ).

Where the Commonwealth sued the valuation administrator of a county to compel him to assess the citizens at a fair rate, the Commonwealth was entitled to an appeal as a matter of right. (Decided under prior law)Commonwealth by Luckett v. Monson, 465 S.W.2d 717, 1970 Ky. LEXIS 96 ( Ky. 1970 ).

Defendant’s appeal of an order revoking her probation was a statutory right to appeal, and thus, whether the Fugitive Disentitlement Doctrine (FDD) would deprive her of a constitutional right was moot; the court of appeals’ denial to apply the FDD was inextricably intertwined with the incorrect conclusion of law that defendant had a constitutional right to appeal, and thus, the supreme court took judicial notice of all governmental documents and public records indicating her absconsion. Commonwealth v. Hess, 2021 Ky. LEXIS 320 (Ky. June 17, 2021).

6.Parties.

Where attorneys are not made parties to the appeal, the Court of Appeals cannot consider the question of the allowance of their fees. (Decided under prior law) Arms v. Arms, 246 Ky. 827 , 56 S.W.2d 536, 1933 Ky. LEXIS 33 ( Ky. 1933 ); Whitsitt v. Adams, 291 Ky. 610 , 165 S.W.2d 180, 1942 Ky. LEXIS 292 ( Ky. 1942 ).

An appeal does not lie against one not a party to proceedings in which judgment was rendered. (Decided under prior law) White v. England, 348 S.W.2d 936, 1961 Ky. LEXIS 47 ( Ky. 1961 ).

Appeal brought against persons who were not parties in the Circuit Court proceedings must be dismissed for the term party as used in CR 73.02 and 73.03 means a party of record. (Decided under prior law) White v. England, 348 S.W.2d 936, 1961 Ky. LEXIS 47 ( Ky. 1961 ).

7.Final Orders and Judgments.

The Court of Appeals has no jurisdiction of an appeal unless the order or judgment appealed from was a final one. (Decided under prior law)Harrison v. Stroud, 150 Ky. 797 , 150 S.W. 993, 1912 Ky. LEXIS 982 ( Ky. 1912 ); Kentucky Heating Co. v. Louisville, 178 Ky. 42 4 , 198 S.W. 1150, 1917 Ky. LEXIS 734 ( Ky. 1917 ); Autry v. Autry, 191 Ky. 42 , 229 S.W. 79, 1921 Ky. LEXIS 264 ( Ky. 1921 ); Claussner Hosiery Co. v. Paducah, 275 Ky. 149 , 120 S.W.2d 1039, 1938 Ky. LEXIS 386 ( Ky. 1938 ).

Where city sought to recover damages for the alleged unlawful use of its streets by a gas company an order merely deciding that the use was unlawful was not a final one. (Decided under prior law)Kentucky Heating Co. v. Louisville, 178 Ky. 424 , 198 S.W. 1150, 1917 Ky. LEXIS 734 ( Ky. 1917 ).

An order to be final must not only determine that one of the parties is entitled to relief of a final character, but it must go further and give that relief by its own force or be enforceable for that purpose without further action of the court or by process for contempt. (Decided under prior law) Elkhorn Land & Improv. Co. v. Ratliffe, 181 Ky. 603 , 205 S.W. 687, 1918 Ky. LEXIS 588 ( Ky. 1918 ).

A final order either terminates the action itself, decides some matter litigated by the parties, or operates to divest some right, in such a manner as to put it out of the power of the court making the order, after the expiration of the term, to place the parties in their original condition. (Decided under prior law) Searcy v. Three Point Coal Co., 280 Ky. 683 , 134 S.W.2d 228, 1939 Ky. LEXIS 188 ( Ky. 1939 ); Adkins v. Carol Mining Co., 281 Ky. 328 , 136 S.W.2d 32, 1940 Ky. LEXIS 40 ( Ky. 1940 ).

An order dismissing an action without prejudice is not an appealable order. (Decided under prior law) Estes v. Gatliff, 291 Ky. 93 , 163 S.W.2d 273, 1942 Ky. LEXIS 180 ( Ky. 1942 ). See C. I. T. Corp. v. Teague, 293 Ky. 521 , 169 S.W.2d 593, 1943 Ky. LEXIS 654 ( Ky. 1943 ).

An order dismissing an action without prejudice is an appealable order. (Decided under prior law)C. I. T. Corp. v. Teague, 293 Ky. 521 , 169 S.W.2d 593, 1943 Ky. LEXIS 654 ( Ky. 1943 ). See Estes v. Gatliff, 291 Ky. 93 , 163 S.W.2d 273, 1942 Ky. LEXIS 180 ( Ky. 1942 ).

An order overruling a motion to set aside, on ground of fraud, that part of a divorce judgment relating to an agreed property settlement was appealable. (Decided under prior law)Friedman v. Friedman, 307 Ky. 439 , 211 S.W.2d 403, 1948 Ky. LEXIS 758 ( Ky. 1948 ).

A “final order” means one where the last say has been said, while an “interlocutory order” means one that is speaking between. (Decided under prior law) Jacoby v. Carrollton Federal Sav. & Loan Ass'n, 246 S.W.2d 1000, 1952 Ky. LEXIS 650 ( Ky. 1952 ).

The final and appealable character of an order should be tested on the basis of whether the order grants or denies the ultimate relief sought in the action or requires further steps to be taken in order that the parties’ rights may be finally determined. (Decided under prior law) Evans Elkhorn Coal Co. v. Ousley, 388 S.W.2d 130, 1965 Ky. LEXIS 416 ( Ky. 1965 ).

With certain enumerated exceptions, the Court of Appeals has appellate jurisdiction only of final orders and judgments of Circuit Courts in civil cases. (Decided under prior law) Webster County Soil Conservation Dist. v. Shelton, 437 S.W.2d 934, 1969 Ky. LEXIS 462 ( Ky. 1969 ).

An order abating an action in the Circuit Court to allow review of the claim before the Workmen’s (now Workers’) Compensation Board was not a final and appealable judgment. (Decided under prior law) Polk v. Geoghegan, 447 S.W.2d 602, 1969 Ky. LEXIS 88 ( Ky. 1969 ).

8.—Assistance of Counsel in Prosecution of Appeals.

When a statute authorizes an original appeal as a matter of right, the equal protection clause of U.S. Const., amend. XIV guarantees that an indigent defendant shall have the assistance of counsel in prosecuting the appeal. (Decided under prior law) Blankenship v. Commonwealth, 554 S.W.2d 898, 1977 Ky. App. LEXIS 782 (Ky. Ct. App. 1977).

9.—Dismissal Order.

An order of dismissal is a final order. (Decided under prior law) Long v. Reiss, 290 Ky. 198 , 160 S.W.2d 668, 1942 Ky. LEXIS 393 ( Ky. 1942 ).

An order dismissing a counterclaim is not a final order from which an appeal lies. (Decided under prior law) Jacoby v. Carrollton Federal Sav. & Loan Ass'n, 246 S.W.2d 1000, 1952 Ky. LEXIS 650 ( Ky. 1952 ).

10.—Divorce Actions.

In divorce action brought by husband, in which wife’s answer asked for divorce from bed and board, where parties submitted case for “final judgment,” and court granted wife relief asked, this ruling was a final order, and had the effect of dismissing husband’s petition, from which order an appeal could be taken. (Decided under prior law) Swartz v. Caudill, 279 Ky. 206 , 130 S.W.2d 80, 1939 Ky. LEXIS 264 ( Ky. 1939 ).

Although orders quashing depositions or refusing their filing normally would be treated as interlocutory and not reviewable by Court of Appeals, in original action seeking relief against certain orders in divorce action, Court of Appeals had jurisdiction to review orders quashing or refusing to file defendant’s depositions in divorce action since judgment granting a divorce is nonreviewable by Court of Appeals and defendant might sustain irreparable damage without any remedy by appeal or otherwise. (Decided under prior law)Fitzgerald v. Fitzgerald, 284 Ky. 137 , 143 S.W.2d 1082, 1940 Ky. LEXIS 459 ( Ky. 1940 ).

Court of Appeals had jurisdiction of appeal by wife from order granting temporary alimony pending final disposition of divorce action, regardless of whether court had jurisdiction of appeal from order abating the suit under authority of Soldiers’ and Sailors’ Civil Relief Act since appeal from order granting temporary alimony is independent of the final determination of the rights of the parties and possesses the essential elements of a final judgment being enforceable by rule or execution. (Decided under prior law) Ahrens v. Ahrens, 299 Ky. 497 , 185 S.W.2d 694, 1945 Ky. LEXIS 441 ( Ky. 1945 ).

Where the plaintiff filed suit for divorce or an annulment in the alternative and the annulment was denied with provision that a divorce would be granted when a judgment was tendered and no judgment was tendered, the appeal was dismissed because it was not prosecuted from a final order or judgment. (Decided under prior law) Brown v. Brown, 430 S.W.2d 458, 1968 Ky. LEXIS 405 ( Ky. 1968 ).

An appeal from a final order awarding an absolute divorce which attacked the right of the prevailing party to the divorce but did not seek to set the divorce aside was not prohibited by law prohibiting appeal from that part of a judgment granting a divorce. (Decided under prior law) Sharp v. Sharp, 491 S.W.2d 639, 1973 Ky. LEXIS 576 ( Ky. 1973 ).

11.—Injunction.

Where judgment in suit by landowners against owner of property adjoining theirs to enjoin him from using his property as a commercial parking lot which they alleged was in violation of the zoning and certain other city ordinances merely denied the injunction, it was not a final order because it did not dismiss the complaint or otherwise terminate the litigation or finally dispose of the issues and therefore an appeal from such judgment must be dismissed. (Decided under prior law) Stewart v. Jackson, 311 S.W.2d 568, 1958 Ky. LEXIS 211 ( Ky. 1958 ).

12.—New Trial.

Order granting a new trial is not a final order or judgment from which an appeal may be taken. (Decided under prior law) Dailey v. Lexington & E. R. Co., 180 Ky. 668 , 203 S.W. 569, 1918 Ky. LEXIS 137 ( Ky. 1918 ); Morris v. Morris, 225 Ky. 823 , 10 S.W.2d 277, 1928 Ky. LEXIS 872 ( Ky. 1928 ); Murphy v. Harmon, 291 Ky. 504 , 165 S.W.2d 11, 1942 Ky. LEXIS 262 ( Ky. 1942 ).

13.—Order Adjudging Costs and Continuing Case.

A judgment not attempting to dispose of a case but merely adjudging costs incurred at a particular term and continuing the case was not final and appealable. (Decided under prior law) Trade Discount Co. v. J. R. Cox & Co., 143 Ky. 515 , 136 S.W. 901, 1911 Ky. LEXIS 437 ( Ky. 1911 ).

14.Orders Regarding Real Estate.

A judgment construing a deed without giving enforceable relief is not a final judgment from which an appeal may be taken. (Decided under prior law) Elkhorn Land & Improv. Co. v. Ratliffe, 181 Ky. 603 , 205 S.W. 687, 1918 Ky. LEXIS 588 ( Ky. 1918 ).

Judgment ordering a sale of real estate for division was not a final judgment from which an appeal could be prosecuted by one who claimed a lien upon the property, but who did not oppose the sale, and sought only to subject the proceeds to his asserted lien. (Decided under prior law) Pool v. Pool, 183 Ky. 341 , 209 S.W. 62, 1919 Ky. LEXIS 485 ( Ky. 1919 ).

An order requiring plaintiff in an action for trespass in cave which plaintiff claimed extended under his land to pay costs of survey unless it should develop that cave did extend under plaintiff’s land, in which event the court reserved for further adjudication question of distribution of costs, was not a final appealable order. (Decided under prior law) Edwards v. Lee, 230 Ky. 375 , 19 S.W.2d 992, 1929 Ky. LEXIS 88 ( Ky. 1929 ).

A judgment in an action to enforce a claim for one-third of the rent received from certain lands, which merely adjudged that plaintiff was entitled to a lien on the land for one-third of the rent, without determining the amount of the rent, or whether there was in fact any rent, and continuing the action for the purpose of ascertaining the amount due, without disposing of a pending cross-petition, was not a final judgment from which an appeal could be taken. (Decided under prior law) Wallace v. Haven, 278 Ky. 613 , 129 S.W.2d 153, 1939 Ky. LEXIS 478 ( Ky. 1939 ).

In action by lessor against insolvent coal mining company for rents and royalties, in which action labor and compensation claimants intervened, judgment fixing order of priority of all claims and directing a sale of the property was a final order and appealable, though judgment also provided that defendant could except to itemized list made on his property, and case was reserved on the docket for further proceedings; the matters not finally fixed were matters of administration and not of judicial decision. (Decided under prior law) Adkins v. Carol Mining Co., 281 Ky. 328 , 136 S.W.2d 32, 1940 Ky. LEXIS 40 ( Ky. 1940 ).

An order granting or refusing a writ of possession to a purchaser at judicial sale is a final order and may be appealed from. (Decided under prior law) Henderson v. Meadows, 290 Ky. 188 , 160 S.W.2d 588, 1942 Ky. LEXIS 366 ( Ky. 1942 ).

Where land was sold at a judicial sale in the course of an action seeking to sell land and distribute the proceeds among heirs, and the purchaser, who was one of the heirs, became dissatisfied with the transaction and petitioned court to vacate the sale, an order vacating the sale was not a “final order” and thus, not appealable. (Decided under prior law) Keffer v. Keffer, 307 Ky. 831 , 212 S.W.2d 314, 1948 Ky. LEXIS 836 ( Ky. 1948 ).

15.—Redocketing Order.

Where complaint was dismissed and case stricken from the docket and sixteen months later a motion to redocket the case was sustained, an appeal from the order redocketing the case was not appealable order. (Decided under prior law) Evans Elkhorn Coal Co. v. Ousley, 388 S.W.2d 130, 1965 Ky. LEXIS 416 ( Ky. 1965 ).

16.Appeal.

There is no appeal as a matter of right to the Court of Appeals from an appellate decision of the Circuit Court since such review can only be had by a motion for discretionary review under this rule. Commonwealth v. Hurd, 612 S.W.2d 766, 1981 Ky. App. LEXIS 227 (Ky. Ct. App. 1981).

Subsection (5) of this section may hint of a review procedure but it would apply only in that a party aggrieved by the judgment of a Circuit Court on an appeal of an interlocutory order in a criminal case could seek discretionary review in the Court of Appeals to have the Circuit Court decision vacated as being beyond the Circuit Court’s jurisdiction. Tipton v. Commonwealth, 770 S.W.2d 239, 1989 Ky. App. LEXIS 38 (Ky. Ct. App. 1989), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ), abrogated in part, Commonwealth v. Lamberson, 2007 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Nov. 9, 2007).

Where defendant’s conviction in District Court was reversed in the Circuit Court, and state filed both notice of appeal and motion for discretionary review under CR 76.20, the state was not entitled to appeal as a matter of right in Court of Appeals where motion for discretionary appeal was denied, since Const. § 115 provides only for one appeal as a matter of right in each case, not one appeal by each party; thus appeal was properly dismissed. Commonwealth v. Hurd, 612 S.W.2d 766, 1981 Ky. App. LEXIS 227 (Ky. Ct. App. 1981).

The proper method of invoking the jurisdiction of the Court of Appeals in a judgment of the Circuit Court in a case appealed to it from District Court was governed by this section and not CR 73.02 and required that the party aggrieved by the decision of the Circuit Court petition the Court of Appeals for a writ of certiorari, since the Circuit Court was sitting as an appellate court when it rendered its ruling. Beard v. Commonwealth ex rel. Shaw, 891 S.W.2d 382, 1994 Ky. LEXIS 146 ( Ky. 1994 ).

Notice of appeal filed with the Court of Appeals under CR 73.02 may not serve to transfer jurisdiction to an appellate court when a motion for a discretionary review was called for by the rules under CR 76.20 and the policy of substantial compliance with the procedural requirements of this section did not apply. Beard v. Commonwealth ex rel. Shaw, 891 S.W.2d 382, 1994 Ky. LEXIS 146 ( Ky. 1994 ).

Denial of writ of prohibition was proper since company could appeal, under Ky. Const., § 115 and KRS 22A.020(1), any contempt order issued by the trial court for breach of noncompetition order on substantive or jurisdictional grounds and did not show irreparable harm if the writ was not issued. Newell Enters. v. Bowling, 158 S.W.3d 750, 2005 Ky. LEXIS 15 ( Ky. 2005 ).

Petition to prohibit possible sanctions for contempt stands on its own merits, and a writ of prohibition will not issue unless it is shown that the standard for the issuance of a writ of prohibition has been met. Newell Enters. v. Bowling, 158 S.W.3d 750, 2005 Ky. LEXIS 15 ( Ky. 2005 ).

When appellant’s appointed counsel filed his appeal from a RCr 11.42 motion in the wrong court, it was error for the court of appeals to deny appellant’s motion for a belated appeal. When incompetence of counsel, especially state-appointed counsel, costs an indigent defendant a right of appeal under KRS 22A.020(1), that defendant ought to be entitled to a reinstated or belated appeal, even in collateral proceedings. Moore v. Commonwealth, 199 S.W.3d 132, 2006 Ky. LEXIS 135 ( Ky. 2006 ).

17.—Commonwealth.

In Commonwealth v. Schumacher, 566 S.W.2d 762, 1978 Ky. App. LEXIS 524 (Ky. Ct. App. 1978), the Court of Appeals determined that the requirement in subdivision (4)(b) of this section which procedurally required the Commonwealth’s attorney to get the permission of the Attorney General before appealing a case was unconstitutional because only the Supreme Court, under present law, has the authority to establish appellate procedure. The court did not say nor intend to suggest that the legislature could not give the Commonwealth the right to appeal under certain conditions; clearly, the legislature may and has. Commonwealth v. Evans, 645 S.W.2d 350, 1982 Ky. App. LEXIS 280 (Ky. Ct. App.), aff'd, 645 S.W.2d 346, 1982 Ky. LEXIS 330 ( Ky. 1982 ).

The Commonwealth could properly appeal from order transferring the venue of a criminal case even assuming such order was interlocutory. Commonwealth v. Evans, 645 S.W.2d 350, 1982 Ky. App. LEXIS 280 (Ky. Ct. App.), aff'd, 645 S.W.2d 346, 1982 Ky. LEXIS 330 ( Ky. 1982 ).

An appeal by the Commonwealth from a ruling of the Circuit Court refusing to admit certain prior testimony of an absent witness was not a certification of law, and therefore, the Court of Appeals had the jurisdiction to decide whether the evidence was properly denied admittance. Commonwealth v. Howard, 665 S.W.2d 320, 1984 Ky. App. LEXIS 475 (Ky. Ct. App. 1984).

KRS 22A.020(4) allows the Commonwealth to appeal a trial court’s order granting a new trial to the Court of Appeals of Kentucky; the Commonwealth’s appeal suspends the trial court’s order, and if the Court of Appeals concludes from a review of the record that the trial court abused its discretion by granting a new trial, the Court of Appeals is required to reverse the order and reinstate the verdict. Commonwealth v. Bailey, 71 S.W.3d 73, 2002 Ky. LEXIS 56 ( Ky. 2002 ).

Because neither defendant’s double jeopardy nor speedy trial rights would be violated by the Commonwealth’s good faith interlocutory appeal of a suppression order, staying defendant’s trial while the order was reviewed under CR 76.33 did not violate KRS 22A.020(4). Commonwealth v. Lamberson, 201 S.W.3d 497, 2006 Ky. App. LEXIS 268 (Ky. Ct. App. 2006).

Commonwealth had a statutory right to appeal an order granting defendant’s motion to suppress. Commonwealth v. Parker, 2011 Ky. App. LEXIS 173 (Ky. Ct. App. Sept. 30, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 996 (Ky. Ct. App. Sept. 30, 2011).

In a case involving the suppression of evidence, an appeal filed by the Commonwealth was timely, even though it was inappropriate for review under the civil rule for altering or amending a judgment, because the Commonwealth forfeited its motion before the trial court with an alternative request for findings of fact and conclusions of law under a rule of criminal procedure; the motion for findings under the rule of criminal procedure was treated as a motion under the rules of civil procedure seeking findings of fact, thus tolling the appeal period. Parker v. Commonwealth, 440 S.W.3d 381, 2014 Ky. LEXIS 432 ( Ky. 2014 ).

Court of Appeals erred in reversing the dismissal of a case because the Commonwealth had no right to appeal the order of dismissal that it requested in order to obtain appellate review of two adverse and clearly interlocutory pretrial rulings, the order of dismissal was not an interlocutory order or an adverse decision or ruling, the dismissal discharged defendant from custody (or the obligations of his bond) and terminated the litigation, and any difficulty imposed by the two pretrial rulings became moot, were irrelevant to any actual case or controversy, and were simply matters for academic discourse. Newkirk v. Commonwealth, 505 S.W.3d 770, 2016 Ky. LEXIS 627 ( Ky. 2016 ).

18.— County Attorney.

A County Attorney has the right to appeal an adverse decision or ruling in a criminal action from District to Circuit Court without the prior approval of the Attorney General. Commonwealth v. Wasson, 785 S.W.2d 67, 1990 Ky. App. LEXIS 10 (Ky. Ct. App. 1990).

19.Role of Attorney General.

The Attorney General’s role in reviewing appeals before they are docketed in the Court of Appeals is a purely administrative act, designed to eliminate frivolous, vexatious or meritless appeals; this section is a legislative assignment of an executive duty, not a judicial duty. Commonwealth v. Wasson, 785 S.W.2d 67, 1990 Ky. App. LEXIS 10 (Ky. Ct. App. 1990).

20.New Trial Order.

Although Court of Appeals correctly accepted Commonwealth’s appeal from trial court’s decision to grant a new trial on basis of newly-discovered evidence and was within its authority under this section to review issue presented, it should have limited its opinion to certifying the law and it had no authority to “set aside” the new trial order. Commonwealth v. Littrell, 677 S.W.2d 881, 1984 Ky. LEXIS 285 ( Ky. 1984 ), overruled in part, Commonwealth v. Bailey, 71 S.W.3d 73, 2002 Ky. LEXIS 56 ( Ky. 2002 ).

21.Order Transferring Case.

An appeal could be taken by Commonwealth from order transferring case whether such appeal was or was not from a final judgment. (Decided under prior law) Commonwealth v. Cooper, 295 Ky. 247 , 173 S.W.2d 128, 1943 Ky. LEXIS 186 ( Ky. 1943 ).

22.Void Judgment.

Where no motion was made to dismiss appeal from a void judgment, Court of Appeals would entertain the appeal and declare such judgment void, for this would enable a party injured thereby to have the judgment removed from the record without injury to the adverse party who acquired no rights under the void judgment. (Decided under prior law) Epling v. Ratliff, 364 S.W.2d 327, 1963 Ky. LEXIS 202 ( Ky. 1963 ).

23.Divorce.

Under this section, the Court of Appeals has no jurisdiction for review by appeal or writ of certiorari from that portion of a final judgment, order or decree of a Circuit Court dissolving a marriage. Drake v. Drake, 809 S.W.2d 710, 1991 Ky. App. LEXIS 7 (Ky. Ct. App. 1991).

Arrearage arising out of a prior temporary maintenance order became reviewable when it was incorporated in a dissolution decree, which is final and reviewable. Calloway v. Calloway, 832 S.W.2d 890, 1992 Ky. App. LEXIS 140 (Ky. Ct. App. 1992).

Mandamus is not available to attack a final judgment dissolving a marriage where direct appeal is proscribed by statute. Goldman v. Eichenholz, 851 S.W.2d 463, 1993 Ky. LEXIS 22 ( Ky. 1993 ), dismissed, 2002 Ky. App. LEXIS 680 (Ky. Ct. App. Mar. 22, 2002).

Even though there was generally no appeal allowed from a divorce action, an appeal was permitted if the divorce judgment was void. However, a motion to set aside a divorce decree under CR 60.02 based on the fact that a marriage had been annulled by the Roman Catholic Church was properly denied because the motion was untimely filed, there was no evidence of civil fraud, and constitutional reasons did not allow an interface between church and state law. Age v. Age, 340 S.W.3d 88, 2011 Ky. App. LEXIS 23 (Ky. Ct. App. 2011).

Court of Appeals cannot reverse a judgment granting a divorce. (Decided under prior law) Irwin v. Irwin, 105 Ky. 632 , 49 S.W. 432, 20 Ky. L. Rptr. 1761 , 1899 Ky. LEXIS 245 ( Ky. 1 899 ); Shehan v. Shehan, 152 Ky. 1 91 , 153 S.W. 243, 1913 Ky. LEXIS 640 ( Ky. 191 3 ); Evans v. Evans, 247 Ky. 1, 56 S.W.2d 547, 1933 Ky. LEXIS 339 ( Ky. 1933 ); Hanks v. Hanks, 282 Ky. 236 , 138 S.W.2d 362, 1940 Ky. LEXIS 155 ( Ky. 1940 ); De Simone v. De Simone, 388 S.W.2d 591, 1965 Ky. LEXIS 439 ( Ky. 1965 ).

The Court of Appeals cannot review a judgment granting a divorce even though question of jurisdiction is involved. (Decided under prior law) Auxier v. Auxier, 151 Ky. 504 , 152 S.W. 573, 1913 Ky. LEXIS 531 (Ky.), modified, 155 Ky. 174 , 159 S.W. 678, 1913 Ky. LEXIS 210 ( Ky. 1913 ).

An appeal from an order refusing to set aside a judgment of divorce is not a direct appeal from a judgment of divorce, but a reversal of that order would have the effect of reversing the divorce decree, therefore Court of Appeals does not have jurisdiction. (Decided under prior law) Gribben v. Gribben, 227 Ky. 96 , 11 S.W.2d 998, 1928 Ky. LEXIS 462 ( Ky. 1928 ); Bushong v. Bushong, 272 Ky. 474 , 114 S.W.2d 735, 1938 Ky. LEXIS 148 ( Ky. 1938 ); Winfrey v. Winfrey, 286 Ky. 245 , 150 S.W.2d 689, 1941 Ky. LEXIS 250 ( Ky. 1941 ).

Although divorce judgment was obtained pursuant to void property settlement agreement, the Court of Appeals has no jurisdiction to disturb the judgment, but Court has jurisdiction to consider validity of agreement in a proceeding to enforce it, and to order a proper settlement. (Decided under prior law) Dodd v. Dodd, 278 Ky. 662 , 129 S.W.2d 166, 1939 Ky. LEXIS 481 ( Ky. 1939 ).

Where lower court dismissed motion to set aside judgment granting divorce, made on grounds of fraud in taking depositions, Court of Appeals had no jurisdiction to review or reverse, since only fraud alleged was as to procedural, and not jurisdictional, matters. (Decided under prior law) Winfrey v. Winfrey, 286 Ky. 245 , 150 S.W.2d 689, 1941 Ky. LEXIS 250 ( Ky. 1941 ).

The Court of Appeals could not interfere with decree of divorce to wife by trial court, although on first appeal the appellate court indicated husband should have been granted the divorce. (Decided under prior law) Whaley v. Whaley, 289 Ky. 241 , 158 S.W.2d 416, 1942 Ky. LEXIS 526 ( Ky. 1942 ).

It is only where a divorce judgment is void that an appeal may be prosecuted. (Decided under prior law) Self v. Self, 293 Ky. 255 , 168 S.W.2d 743, 1943 Ky. LEXIS 591 ( Ky. 1943 ).

Judgment of divorce based upon a finding that the plaintiff has the necessary residence, although erroneous, is not void and is not appealable. (Decided under prior law) Self v. Self, 293 Ky. 255 , 168 S.W.2d 743, 1943 Ky. LEXIS 591 ( Ky. 1943 ).

Former statute forbade the reversal by the Court of Appeals of a judgment granting a decree of divorce, but the court could review the evidence to determine whether the judgment was correct in all other respects. (Decided under prior law) Smith v. Smith, 297 Ky. 395 , 180 S.W.2d 275, 1944 Ky. LEXIS 734 ( Ky. 1944 ).

Court of Appeals has power to reverse a judgment of divorce to the extent that it denies to the wife a restoration of her maiden name. Rayburn v. Rayburn, 300 Ky. 209 , 187 S.W.2d 804, 1945 Ky. LEXIS 797 ( Ky. 1945 ).

Judgment of divorce could not be reversed on ground that credibility of witnesses was not established as required by KRS 403.030 (repealed), since Court of Appeals has no power to reverse a judgment granting a divorce. (Decided under prior law) Philpot v. Philpot, 300 Ky. 114 , 188 S.W.2d 107, 1945 Ky. LEXIS 512 ( Ky. 1945 ).

When a divorce decree is erroneously granted, the error may be considered in a determination of the chancellor’s judgment in respect to alimony. (Decided under prior law) Fields v. Fields, 303 Ky. 624 , 198 S.W.2d 298, 1946 Ky. LEXIS 898 ( Ky. 1946 ).

When divorce judgment is void an appeal may be prosecuted to Court of Appeals but where judgment is only erroneous, even in jurisdictional matters, no appeal lies. (Decided under prior law) Weintraub v. Murphy, 240 S.W.2d 594, 1951 Ky. LEXIS 985 ( Ky. 1951 ).

Where husband in action for divorce pleaded Nevada divorce decree as defense and wife alleged husband had not established bona fide domicile in Nevada, appeal to Court of Appeals was not appeal from judgment granting divorce but was appeal from judgment dismissing wife’s action on ground that Nevada decree was entitled to full faith and credit, and court could assume jurisdiction. (Decided under prior law) Taylor v. Taylor, 242 S.W.2d 747, 1951 Ky. LEXIS 1068 ( Ky. 1951 ).

While the Court of Appeals may not reverse a judgment granting a divorce, it may reverse a judgment refusing to grant a divorce. (Decided under prior law) West v. West, 309 S.W.2d 341, 1958 Ky. LEXIS 345 ( Ky. 1958 ).

In action to set aside judgment granting divorce where there was question of jurisdiction and case was referred to commissioner who reported that residence of the parties was such as to confer jurisdiction, appeal based on alleged procedural irregularity that appellant was not notified of filing of commissioner’s report must fail for such irregularity could not render the judgment void and Court of Appeals does not have authority to review whether the granting of a divorce is erroneous. (Decided under prior law) Elswick v. Elswick, 322 S.W.2d 129, 1959 Ky. LEXIS 303 ( Ky. 1959 ).

Where the question of jurisdiction in a divorce action has been raised in the lower court and there is any evidence to show the jurisdictional residence of the parties, the lower court’s judgment granting a divorce based upon a determination that it has jurisdiction is not void and cannot be questioned on appeal regardless of the fact that the determination may be against the overwhelming weight of the evidence and be clearly erroneous. (Decided under prior law) Elswick v. Elswick, 322 S.W.2d 129, 1959 Ky. LEXIS 303 ( Ky. 1959 ).

Notwithstanding provision of former section denying jurisdiction of the Court of Appeals to reverse a judgment of divorce, it had jurisdiction to direct that a judgment of divorce from bed and board be set aside and an absolute divorce granted. (Decided under prior law)Dunning v. Dunning, 325 S.W.2d 315, 1959 Ky. LEXIS 48 ( Ky. 1959 ).

Since former section specifically denied the right of appeal from the portion of a judgment granting a divorce, Court of Appeals could not reverse part of judgment that granted a divorce to both husband and wife even though it was doubtful of the propriety of such judgment. (Decided under prior law) Goetz v. Goetz, 341 S.W.2d 249, 1960 Ky. LEXIS 73 ( Ky. 1960 ).

While decree as to custody of children in divorce action is not final in the sense that trial court cannot change it, it is an appealable order. Gates v. Gates, 412 S.W.2d 223, 1967 Ky. LEXIS 406 ( Ky. 1967 ).

Where the appellant contended that the trial court erred in granting a divorce to the appellee instead of granting it to the appellant, the contention could not be considered on the appeal. (Decided under prior law) Horn v. Horn, 430 S.W.2d 342, 1968 Ky. LEXIS 404 ( Ky. 1968 ).

Where a judgment in favor of the wife was granted on her counterclaim for divorce but the judgment was actually submitted by counsel for the husband with notice to the wife and her counsel, the wife was not entitled to have the judgment of divorce set aside even though she had not authorized her counsel to obtain a final divorce. (Decided under prior law) Greenwell v. Greenwell, 449 S.W.2d 21, 1969 Ky. LEXIS 25 ( Ky. 1969 ).

Since there is no appeal from that portion of a judgment granting a divorce, the remedy of prohibition will be granted to compel a judge to disqualify. (Decided under prior law) Howerton v. Price, 449 S.W.2d 746, 1970 Ky. LEXIS 470 ( Ky. 1970 ).

The Court of Appeals is without authority to reverse that portion of a judgment granting a divorce even if it is felt that the divorce was granted to the wrong person. Gernert v. Gernert, 457 S.W.2d 831, 1970 Ky. LEXIS 218 ( Ky. 1970 ).

24.—Alimony, Custody, Maintenance.

Although the Court of Appeals has no jurisdiction to review a judgment granting a divorce it may review the evidence to determine if the judgment was proper in other respects, such as awarding alimony, custody of children and attorney fees. (Decided under prior law) Tuggles v. Tuggles, 30 S.W. 875, 17 Ky. L. Rptr. 221 (1895); Garrett v. Garrett, 44 S.W. 112, 19 Ky. L. Rptr. 1674 (1898); Williams v. Williams, 136 Ky. 71 , 123 S.W. 337, 1909 Ky. LEXIS 460 ( Ky. 1909 ); Logan v. Logan, 171 Ky. 115 , 188 S.W. 301, 1916 Ky. LEXIS 305 ( Ky. 1916 ); Wesley v. Wesley, 181 Ky. 135 , 204 S.W. 165, 1918 Ky. LEXIS 522 ( Ky. 1918 ); Axton v. Axton, 182 Ky. 286 , 206 S.W. 480, 1918 Ky. LEXIS 360 ( Ky. 1918 ), overruled in part, Farmers Bank & Capital Trust Co. v. Hulette, 293 S.W.2d 458, 1956 Ky. LEXIS 65 ( Ky. 1956 ); Morris v. Morris, 193 Ky. 18 9 , 235 S.W. 358, 1921 Ky. LEXIS 207 ( Ky. 1921 ); Miles v. Miles, 203 Ky. 431 , 262 S.W. 576, 1924 Ky. LEXIS 920 ( Ky. 1924 ); Lewis v. Lewis, 224 Ky. 18 , 4 S.W.2d 1106, 1928 Ky. LEXIS 521 ( Ky. 1928 ); Miller v. Miller, 229 Ky. 436 , 17 S.W.2d 412, 1929 Ky. LEXIS 783 ( Ky. 1929 ); Colyer v. Colyer, 233 Ky. 752 , 26 S.W.2d 511, 1930 Ky. LEXIS 613 ( Ky. 1930 ); Jones v. Jones, 239 Ky. 153 , 39 S.W.2d 262, 1931 Ky. LEXIS 76 2 ( Ky. 1931 ); Farnau v. Farnau, 241 Ky. 530 , 44 S.W.2d 531, 1931 Ky. LEXIS 113 ( Ky. 1931 ); Arms v. Arms, 246 Ky. 827 , 56 S.W.2d 536, 1933 Ky. LEXIS 33 ( Ky. 1933 ); Hartkemeier v. Hartkemeier, 248 Ky. 803 , 59 S.W.2d 1014, 1933 Ky. LEXIS 317 ( Ky. 1933 ); Walden v. Walden, 250 Ky. 379 , 63 S.W.2d 290, 1933 Ky. LEXIS 697 (Ky. 1933); Hawkins v. Hawkins, 254 Ky. 285 , 71 S.W.2d 624, 1934 Ky. LEXIS 71 ( Ky. 1934 ); Glenn v. Glenn, 255 Ky. 422 , 74 S.W.2d 472, 1934 Ky. LEXIS 250 ( Ky. 1934 ); Polivick v. Polivick, 259 Ky. 653 , 83 S.W.2d 8, 1935 Ky. LEXIS 362 ( Ky. 1935 ); Partin v. Partin, 270 Ky. 596 , 110 S.W.2d 298, 1937 Ky. LEXIS 125 ( Ky. 1937 ); Land v. Land, 280 Ky. 122 , 132 S.W.2d 742, 1939 Ky. LEXIS 76 ( Ky. 1939 ); Winfrey v. Winfrey, 286 Ky. 245 , 150 S.W.2d 689, 1941 Ky. LEXIS 250 ( Ky. 1941 ); Sowders v. Sowders, 286 Ky. 269 , 150 S.W.2d 903, 1941 Ky. LEXIS 263 ( Ky. 1941 ); Clay v. Clay, 301 Ky. 547 , 191 S.W.2d 819, 1945 Ky. LEXIS 742 ( Ky. 1945 ); Witt v. Witt, 307 S.W.2d 1, 1957 Ky. LEXIS 67 ( Ky. 1957 ); Kivett v. Kivett, 312 S.W.2d 884, 1958 Ky. LEXIS 414 ( Ky. 1958 ); Hinton v. Hinton, 377 S.W.2d 888, 1964 Ky. LEXIS 506 ( Ky. 1964 ).

Equity will not permit a judgment granting wife a divorce which was procured by husband’s fraud to defeat wife’s subsequent action for alimony, as no appeal would lie from the judgment. (Decided under prior law) Asher v. Asher, 249 Ky. 215 , 60 S.W.2d 592, 1933 Ky. LEXIS 504 ( Ky. 1933 ).

Court of Appeals is without power to relieve husband of alimony payments provided for in agreed judgment, where neither fraud nor want of consent was shown. (Decided under prior law) Hargis v. Hargis, 252 Ky. 198 , 66 S.W.2d 59, 1933 Ky. LEXIS 1001 ( Ky. 1933 ).

Although the Court of Appeals has no power to reverse a judgment granting a divorce, it may review the evidence for the purpose of determining the propriety of a judgment wherein alimony has been refused, 99d may review a judgment to determine whether alimony was properly denied or awarded. (Decided under prior law)Rayburn v. Rayburn, 300 Ky. 209 , 187 S.W.2d 804, 1945 Ky. LEXIS 797 ( Ky. 1945 ).

Although no appeal will lie from the granting of a divorce one will lie for the refusal to grant alimony to a defendant wife and alimony may be granted in the Court of Appeals to a wife found at fault in the Circuit Court. (Decided under prior law)Cooper v. Cooper, 314 Ky. 413 , 234 S.W.2d 658, 1950 Ky. LEXIS 1043 ( Ky. 1950 ).

An adjudication of the right to have child maintenance payments increased is reviewable by the Court of Appeals without regard to the amount involved, because it involves more than the requirement to pay money. (Decided under prior law)Stone v. Stone, 275 S.W.2d 910, 1955 Ky. LEXIS 391 ( Ky. 1955 ), overruling in part Littleton v. Littleton, 295 Ky. 720 , 175 S.W.2d 502, 1943 Ky. LEXIS 341 (1943), overruled, Stone v. Stone, 275 S.W.2d 910, 1955 Ky. LEXIS 391 ( Ky. 1955 ), and Noble v. Noble, 310 Ky. 726 , 221 S.W.2d 654, 1949 Ky. LEXIS 1001 ( Ky. 1949 ), overruled, Stone v. Stone, 275 S.W.2d 910, 1955 Ky. LEXIS 391 (Ky. 1955).

25.Criminal Cases.

After the record is docketed in the Court of Appeals and the motion for appeal is filed, an appeal on motion is considered the same as an appeal as a matter of right. (Decided under prior law) Adkins v. Commonwealth, 441 S.W.2d 417, 1969 Ky. LEXIS 316 ( Ky. 1969 ).

Where the punishment may involve a jail sentence and the defendant has been placed in jeopardy, the Commonwealth is not entitled to a new trial. (Decided under prior law) Commonwealth v. Allen, 441 S.W.2d 424, 1969 Ky. LEXIS 319 ( Ky. 1969 ).

Jeopardy attaches at the swearing of the first witness. (Decided under prior law)Commonwealth v. Lewis, 548 S.W.2d 509, 1977 Ky. LEXIS 400 ( Ky. 1977 ).

Commonwealth’s appeal of the order granting defendant’s motion to suppress had to be dismissed because it was untimely; defendant’s counsel made the Commonwealth aware of the fact that its motion to reconsider was improper, but the Commonwealth chose to press forward without so much as even attempting to file a protective notice of appeal. Commonwealth v. Robertson, 578 S.W.3d 368, 2019 Ky. App. LEXIS 106 (Ky. Ct. App. 2019).

26.—Assistance of Counsel in Prosecution of Appeal.

Appellate review, as such in criminal cases is not a constitutional right, but when a statute such as former section authorizes an original appeal as a matter of right, the equal protection clause of the 14th Amendment guarantees an indigent defendant the assistance of counsel in prosecuting it. (Decided under prior law) McIntosh v. Commonwealth, 368 S.W.2d 331, 1963 Ky. LEXIS 47 ( Ky. 1963 ); Polsgrove v. Commonwealth, 439 S.W.2d 776, 1969 Ky. LEXIS 376 ( Ky. 1969 ).

27.—Grounds for Appeal.

Where the circumstances of representation of the defendant by his employed counsel on the trial level were not such as to shock the conscience of the court or render the proceedings a farce and a mockery of justice, the ground urged concerning lack of adequate representation by counsel was without merit. (Decided under prior law) Polsgrove v. Commonwealth, 439 S.W.2d 776, 1969 Ky. LEXIS 376 ( Ky. 1969 ).

Although ordinarily the Court of Appeals will not certify the law on an appeal from a directed verdict on the ground of insufficiency of the evidence, it did so where the case involved aiding and abetting another in the sale of unregistered securities. (Decided under prior law)Commonwealth v. Allen, 441 S.W.2d 424, 1969 Ky. LEXIS 319 ( Ky. 1969 ).

28.—Misdemeanors.

In misdemeanor cases punishable by fine alone the Commonwealth may appeal from a judgment of acquittal, and, upon reversal thereof, have a new trial notwithstanding the former verdict and judgment of acquittal. (Decided under prior law) Commonwealth v. Devine, 396 S.W.2d 60, 1965 Ky. LEXIS 96 ( Ky. 1965 ).

In misdemeanor cases where the punishment is by a fine only, the Commonwealth may have a reversal and a new trial should the law and facts authorize such course. (Decided under prior law) Commonwealth v. Allen, 441 S.W.2d 424, 1969 Ky. LEXIS 319 ( Ky. 1969 ).

It is only in misdemeanor cases where the punishment is by fine alone that the Commonwealth may have the law certified and obtain reversal for a new trial. (Decided under prior law) Commonwealth v. Wallace, 486 S.W.2d 61, 1972 Ky. LEXIS 109 ( Ky. 1972 ), overruled in part, Sutton v. Commonwealth, 623 S.W.2d 879, 1981 Ky. LEXIS 287 ( Ky. 1981 ).

29.—Recusals.

Notice of appeal naming only an order denying a motion to recuse, and not a final judgment, was fatally defective as neither the rule of substantial compliance nor its subsidiary rule of relation forward could salvage such a notice of appeal. Cassetty v. Commonwealth, 495 S.W.3d 129, 2016 Ky. LEXIS 328 ( Ky. 2016 ).

Cited in:

Yocom v. United States Steel Corp., 566 S.W.2d 160, 1977 Ky. App. LEXIS 914 (Ky. Ct. App. 1977); Commonwealth v. Gettys, 610 S.W.2d 899, 1980 Ky. App. LEXIS 403 (Ky. Ct. App. 1980); Perry County Fiscal Court v. Commonwealth, 674 S.W.2d 954, 1984 Ky. LEXIS 243 ( Ky. 1984 ); Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ); Commonwealth v. Simmons, 753 S.W.2d 872, 1988 Ky. App. LEXIS 26 (Ky. Ct. App. 1988); Commonwealth v. Bass, 777 S.W.2d 916, 1989 Ky. LEXIS 88 ( Ky. 1989 ); Commonwealth v. Erickson, 132 S.W.3d 884, 2004 Ky. App. LEXIS 38 (Ky. Ct. App. 2004); Billingsley v. Commonwealth, 2004 Ky. App. LEXIS 162 (Ky. Ct. App. 2004); Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 2009 Ky. LEXIS 193 ( Ky. 2009 ); Commonwealth v. Newkirk, 2014 Ky. App. LEXIS 180 (Nov. 21, 2014); Commonwealth v. Terrell, 2015 Ky. LEXIS 69 (Apr. 2, 2015); Cabinet for Health & Family Servs. v. J.M.G., 2015 Ky. LEXIS 2013 (Dec. 17, 2015).

Notes to Unpublished Decisions

1.Appeal.

Unpublished decision: Due to a 2003 amendment to KRS 22A.020 , a circuit court did not have subject matter jurisdiction over an appeal of a family court order removing a minor from the custody of his maternal great-grandmother and giving custody to his paternal grandmother. Thorn v. Commonwealth, 181 S.W.3d 560, 2005 Ky. App. LEXIS 265 (Ky. Ct. App. 2005).

Unpublished decision: Legislative intent that KRS 620.155 only applied to counties without a family court resolved any conflict between KRS 22A.020 and KRS 620.155 regarding whether a circuit court or the court of appeals had jurisdiction of an appeal from a family court order Thorn v. Commonwealth, 181 S.W.3d 560, 2005 Ky. App. LEXIS 265 (Ky. Ct. App. 2005).

Research References and Practice Aids

Cross-References.

Adoption, appeal from Circuit Court, KRS 199.560 .

Air pollution control district, appeal from Circuit Court judgment reviewing division of hearing board, KRS 77.305 .

Allotment of dower, appeal from judgment regarding, KRS 381.135 .

Civil cases, appeals, 72.01 to 76.46.

Claims, Board of, appeal from judgment of Circuit Court based on award of, KRS 44.150 .

Criminal cases, appeals, RCr. 12.02 to 12.82.

Death or life imprisonment or imprisonment for twenty years or more, appeal from sentence of, Const., § 110.

Election contests and recounts, appeals in, KRS 120.075 , 120.165 , 120.270 , 120.300 .

Habeas corpus proceeding, appeal from, KRS 419.130 .

Land jointly held, division of, appeal from judgment regarding, KRS 381.135 .

Police or firemen of fourth-class or fifth-class city, when appeal allowed in case of discipline or removal, KRS 95.766 .

Sewer construction district, appeal from decision concerning establishment of, KRS 76.305 .

Statutory limitation on time for taking appeal, docketing of in Court of Appeals within time specified, KRS 446.190 .

Zoning and planning cases, appeals in, KRS 100.347 .

Kentucky Bench & Bar.

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

Family Court: Understanding Family Court in Kentucky, Vol. 68, No.6, Nov. 2004, Ky. Bench & Bar 7.

Kentucky Law Journal.

Kentucky Law Survey, Collier, Criminal Procedure, 68 Ky. L.J. 655 (1979-1980).

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

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

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

Northern Kentucky Law Review.

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Decree of Dissolution of Marriage, Form 253.30.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Family Court, § 5.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Criminal Appeals, § 104.00.

Petrilli, Kentucky Family Law, Dissolution Decree, §§ 24.27, 24.29.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), § 27.15.

22A.030. Facilities.

  1. The administrative director of the courts shall provide for such physical facilities as are available for the operation of the Court of Appeals, and may utilize the services of the Finance and Administration Cabinet in securing such facilities.
  2. The Court of Appeals may use any public property of, or any property leased or rented to, the Commonwealth or any of its political subdivisions for the holding of court and for its ancillary functions upon proper agreement with the applicable authorities.
  3. The Court of Appeals may use any federal courtroom or other facility for the holding of court and for its ancillary functions upon proper agreement with the applicable authorities.

History. Enact. Acts 1976, ch. 70, § 4, effective March 23, 1976.

22A.040. Clerk — Appointment — Compensation — Oath — Bond — Assistants — Fee schedule — Seal — Annual audit.

  1. The clerk of the Court of Appeals shall be appointed by the court to serve at its pleasure. The annual salary of the clerk shall be fixed by the Supreme Court not to exceed twenty-two thousand dollars ($22,000).
  2. Before entering upon the duties of his office, the clerk shall take the oath of office prescribed by the Constitution.
  3. The clerk shall perform such duties as the Court of Appeals may assign, and shall be bonded to the Commonwealth, for faithful performance of duty, in such manner and in an amount not less than ten thousand dollars ($10,000) as the Supreme Court shall determine.
  4. The clerk may appoint assistants in the number and at the salaries fixed by the Supreme Court.
  5. The Court of Appeals shall adopt a seal. The clerk shall be the keeper of the seal and shall use it upon such documents as the Court of Appeals may require.
  6. A fee schedule for services rendered by the clerk shall be fixed by rule of the Supreme Court, except that charges to litigants for the reproduction of appellate records and briefs shall be fixed and administered by the clerk. All fees collected by the clerk shall be remitted to the State Treasury.
  7. The Auditor of Public Accounts shall audit the financial accounts of the clerk at least once every year.

History. Enact. Acts 1976, ch. 70, § 5, effective March 23, 1976.

22A.050. Enforcement of mandates.

The Court of Appeals may enforce its mandates by fine or imprisonment, or both.

History. Enact. Acts 1976, ch. 70, § 6, effective March 23, 1976.

NOTES TO DECISIONS

1.Nullification.

Where the Court of Appeals ruled that a judicial sale to the second highest bidder should be set aside and the property sold to the first highest bidder, and upon the default of the first highest bidder to be readvertised and resold, the mere allegation that the first highest bidder acted in bad faith and never intended to make good its bid would not be sufficient to nullify the resale mandate. (Decided under prior law) E'Town Shopping Center, Inc. v. Holbert, 452 S.W.2d 396, 1970 Ky. LEXIS 355 ( Ky. 1970 ).

Cited:

Covington v. Court of Justice, 784 S.W.2d 180, 1990 Ky. LEXIS 13 ( Ky. 1990 ).

22A.060. Reversal or modification of judgment — Procedure for appellate review.

  1. A judgment, order or decree of a lower court may be reversed, modified or set aside by the Court of Appeals for errors appearing in the record.
  2. The method of bringing a judgment, order or decree of a lower court to the Court of Appeals for review shall be established by Supreme Court rule. The procedures for appellate review shall be established by the Rules of Civil Procedure, Rules of Criminal Procedure and other rules promulgated by the Supreme Court.

History. Enact. Acts 1976, ch. 70, § 7, effective March 23, 1976.

NOTES TO DECISIONS

1.Power of Appellate Jurisdiction.

Within limits prescribed by statutes, appellate jurisdiction is the power and authority to review, revise, correct or affirm decisions of an inferior court, and more particularly to exercise the same judicial power which has been executed in the court of original jurisdiction. (Decided under prior law)Copley v. Craft, 341 S.W.2d 70, 1960 Ky. LEXIS 66 ( Ky. 1960 ).

2.Reversal.

In proceeding contesting will on ground of undue influence where jury held that will was obtained by undue influence, Court of Appeals’ action in reversing trial court was not a usurping of the right of trial by jury or the discretionary power of the Circuit Court for former Const., § 110 created and conferred appellate jurisdiction on the Court of Appeals and former law expressly authorized a reversal of a judgment for errors appearing in the record and the Court of Appeals in performance of its duty decided that as a matter of law evidence present in the trial court to establish undue influence was not sufficient to establish the allegation. (Decided under prior law)Copley v. Craft, 341 S.W.2d 70, 1960 Ky. LEXIS 66 ( Ky. 1960 ).

3.Correction of Erroneous Judgment.

In an action in which judgment was rendered against defendants, husband and wife, for amount of notes assumed by wife in purchase of real estate, and husband made no defense and did not file motion in lower court for a new trial or to vacate the judgment, the Court of Appeals had authority to correct the erroneous judgment where the pleadings did not support it. (Decided under prior law)Samuels v. Weikel, 195 Ky. 552 , 242 S.W. 835, 242 S.W. 836, 1922 Ky. LEXIS 346 ( Ky. 1922 ).

4.Vacation.

Where plaintiff recovered judgment under KRS 418.005 against the surety on a bond given in accordance with KRS 425.305 (repealed), the court erred in granting, during the subsequent term, the surety’s motion to set aside the judgment against him, the proper remedy for the surety being an action to vacate the judgment. (Decided under prior law)Malnowski v. Stacy, 231 Ky. 23 , 20 S.W.2d 1008, 1929 Ky. LEXIS 202 ( Ky. 1929 ).

5.Shock Probation.

Former KRS 23.035 that governed reversal, vacation or modification of judgments was subject to the Rules of Civil Procedure which provided for retention of a judgment for a period of 10 days and the court could not utilize the provisions of shock probation as provided by KRS 439.265 within this 10-day period. (Decided under prior law)Commonwealth ex rel. Molloy v. Meade, 554 S.W.2d 399, 1977 Ky. App. LEXIS 762 (Ky. Ct. App. 1977).

Cited:

Granville & Nutter Shoe Co. v. Florsheim Shoe Co., 569 S.W.2d 721, 1978 Ky. App. LEXIS 572 (Ky. Ct. App. 1978).

22A.070. Direction of process.

The original or final process of the Court of Appeals may be directed to the sheriff of any county.

History. Enact. Acts 1976, ch. 70, § 8, effective March 23, 1976.

CHAPTER 23 Circuit Courts Generally [Repealed]

23.010. Court of record — Original civil jurisdiction — Judge conservator of the peace. [Repealed.]

Compiler’s Notes.

This section (966) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS 23A.010 .

23.020. Franklin Circuit Court — Venue in revenue and fiscal cases. [Repealed.]

Compiler’s Notes.

This section (340a-2, 976, 4171, 4182, 4233) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.030. Appellate civil jurisdiction. [Repealed.]

Compiler’s Notes.

This section (978) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS 23A.080 .

23.032. Appeal from fine or imprisonment — Appeals by city. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 234, § 2; 1964, ch. 72, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS 23A.080 .

23.035. Reversal, vacation or modification of judgments. [Repealed.]

Compiler’s Notes.

This section (C.C. 513: trans. Acts 1952, ch. 84, § 1; 1976, ch. 62, § 16) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.040. Circuit court districts. [Repealed.]

Compiler’s Notes.

This section (963: amend. Acts 1948, ch. 209, §§ 1, 2; 1948, ch. 212, §§ 1, 2; 1950, ch. 143, §§ 1, 2; 1950, ch. 178, §§ 1, 2; 1954, ch. 71, § 1; 1954, ch. 116, §§ 1 to 4; 1956, ch. 59, §§ 1 to 3; 1956 (1st Ex. Sess.), ch. 2, § 1; 1960, ch. 39, § 4; 1960, ch. 170; 1962, ch. 270, §§ 1 to 3; 1968, ch. 152, § 7; 1970, chs. 71, 167; 1972, ch. 177, §§ 1, 2, 6, 7; 1974, ch. 17, §§ 1(1), (2), 2(1),(2); 1976, ch. 45, §§ 1 to 4; 1976, ch. 62, § 17) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective March 19, 1977. For present law, see KRS 23A.020 .

23.045. Court of Appeals to establish circuit court terms. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 201, § 1; 1976, ch. 62, § 18) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.050. Terms of court. [Repealed.]

Compiler’s Notes.

This section (965 to 965-38: amend. Acts 1942, ch. 29, § 1; 1942, ch. 38, §§ 1, 2; 1942, ch. 187, §§ 1, 2; 1942 ch. 191, §§ 1, 2; 1942, ch. 194, §§ 1, 2; 1946, ch. 32; 1946, ch. 59; 1946, ch. 105; 1946, ch. 108; 1948, ch. 7, § 1; 1948, ch. 209, § 5; 1948, ch. 212, § 5; 1950, ch. 143, § 5; 1950, ch. 178, § 5; 1950, ch. 200, § 1; 1952, ch. 3; 1952, ch. 7, § 1; 1952, ch. 13; 1952, ch. 22, § 1; 1952, ch. 91; 1952, ch. 100, § 1; 1952, ch. 105, § 1; 1952, ch. 142, § 1; 1954, ch. 71, §§ 3, 5; 1954, ch. 93, § 1; 1954, ch. 116, § 9; 1954, ch. 128, § 1; 1954, ch. 210, § 1; 1956, ch. 44, § 1; 1956, ch. 55, § 1; 1956, ch. 59, §§ 6, 7, 8; 1956, ch. 83, § 1; 1956 (1st Ex. Sess.), ch. 2, § 2; 1956 (4th Ex. Sess.), ch. 8, §§ 1, 2; 1958, ch. 29; 1958, ch. 74; 1958, ch. 87; 1958, ch. 88; 1960, ch. 39, §§ 5, 6; 1960, ch. 70; 1960, ch. 170, § 5; 1960, ch. 190; 1960, ch. 201, § 1; 1960, ch. 230; 1962, ch. 54; 1962, ch. 237; 1962, ch. 247, § 1; 1962, ch. 270, § 8; 1962, ch. 274; 1962, ch. 277) was repealed by Acts 1962, ch. 201, § 2.

23.055. Supreme court to supervise circuit court dockets. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 200, § 1; 1976, ch. 62, § 19) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.060. Court to be held at more than one place in certain counties. [Repealed.]

Compiler’s Notes.

This section (963d-1, 963e-1, 963e-6) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.070. Juries and conduct of court when held at more than one place. [Repealed.]

Compiler’s Notes.

This section (963d-1, 963e-2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.080. Civil and criminal cases, where tried when court held at more than one place. [Repealed.]

Compiler’s Notes.

This section (963d-1, 963e-3, 963e-4) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

23.085. Places of holding court in certain counties containing only fourth-class cities. [Repealed.]

Compiler’s Notes.

This section (Acts 1964, ch. 197, §§ 1-4; 1970, ch. 141, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.090. Fiscal court to provide court facilities — Order dividing terms — Assignment of cases — Acquisition of quarters in city by fiscal court for courts and county purposes. [Repealed.]

Compiler’s Notes.

This section (963d-1, 963e-5: amend. Acts 1954, ch. 160; 1964, ch. 58, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.091. Fiscal court and urban-county governing body to furnish facilities and financial support until January 1, 1978. [Repealed.]

Compiler’s Notes.

This section (Acts 1976, ch. 1, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.095. National and state flags to be provided for each courtroom — Size. [Repealed.]

Compiler’s Notes.

This section (Acts 1964, ch. 20) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.100. Election to determine whether court to be held at place other than county seat. [Repealed.]

Compiler’s Notes.

This section (963e-7) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.110. Extension of term — Special terms — When held — How called — Notification. [Repealed.]

Compiler’s Notes.

This section (971-13: amend. Acts 1962, ch. 69; 1976, ch. 62, § 20) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.120. When special term mandatory — Chief justice may call — Notice. [Repealed.]

Compiler’s Notes.

This section (971-12: amend. Acts 1976, ch. 62, § 21) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.125. Motion day to be established by rule — Precedence over assigned juridical day. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 84, § 4; 1976, ch. 62, § 22) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.130. Continuance of undisposed business. [Repealed.]

Compiler’s Notes.

This section (974) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.140. No discontinuance on failure to sit. [Repealed.]

Compiler’s Notes.

This section (975) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.145. Defendant confined on misdemeanor charge, trial by county judge — Transfer — Proceedings after judgment. [Repealed.]

Compiler’s Notes.

This section (1073-1076: reenacted by Acts 1962, ch. 234, § 57) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.150. Orders and judgments in vacation or in chambers. [Repealed.]

Compiler’s Notes.

This section (964b-1: amend. Acts 1952, ch. 84, § 45; 1976, ch. 62, § 23) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.160. When criminal and penal cases heard. [Repealed.]

Compiler’s Notes.

This section (971-13: amend. Acts 1954, ch. 95) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.170. Oath of circuit judge. [Repealed.]

Compiler’s Notes.

This section (972) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.180. Judges’ commissions — Appointment of special judges — Record of. [Repealed.]

Compiler’s Notes.

This section (971-10, 973) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.190. Successor of judge may sign orders. [Repealed.]

Compiler’s Notes.

This section (977) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

23.200. Salary of judges. [Repealed.]

Compiler’s Notes.

This section (971-8, 4357-5) was repealed by Acts 1950, ch. 123, § 29.

23.210. Salary may be supplemented. [Repealed.]

Compiler’s Notes.

This section (979a-1, 979a-2, 1018, 1018a-1, 1019, 1019b-9, 1020a-1) was repealed by Acts 1950, ch. 123, § 29.

23.215. Miscellaneous expense allowance for judges. [Repealed.]

Compiler’s Notes.

This section (Acts 1948, ch. 61, § 1) was repealed by Acts 1950, ch. 123, § 29.

23.220. Circuit judges to act as special judges — Commission. [Repealed.]

Compiler’s Notes.

This section (971-1, 971-8: amend. Acts 1954, ch. 133, § 1), was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS 26A.020 .

23.230. Special judge by agreement if regular judge absent or cannot preside, or office is vacant — Designation of special judge by chief justice of Supreme Court. [Repealed.]

Compiler’s Notes.

This section (971-6, 971-7: amend. Acts 1944, ch. 35; 1954, ch. 133, § 2; 1976, ch. 62, § 24) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491. For present law, see KRS 26A.020 .

23.240. Designation of special judge by Chief Justice in courts not of continuous session. [Repealed.]

Compiler’s Notes.

This section (971-2, 971-4) was repealed by Acts 1954, ch. 133, § 4.

23.250. Designation of special judge by Chief Justice in courts of continuous session. [Repealed.]

Compiler’s Notes.

This section (971-3) was repealed by Acts 1954, ch. 133, § 4.

23.260. Special judge for special term. [Repealed.]

Compiler’s Notes.

This section (971-12, 971-13: amend. Acts 1976, ch. 62, § 25) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

23.270. Refusal of circuit judge to act — Effect. [Repealed.]

Compiler’s Notes.

This section (971-14: amend. Acts 1976, ch. 62, § 26) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.280. Clerks to notify chief justice of terms — Roster to be kept. [Repealed.]

Compiler’s Notes.

This section (971-11: amend. Acts 1976, ch. 62, § 27) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

23.290. Pay for special judges — Approval of claims. [Repealed.]

Compiler’s Notes.

This section (971-5, 971-7, 971-10: amend. Acts 1950, ch. 123, §§ 6, 29; 1964, ch. 151; 1976, ch. 62, § 28) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

23.300. Special circuit judge. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 83, § 1; 1960, ch. 166, § 1) was repealed by Acts 1962, ch. 9, § 9.

23.310. Eligibility of regular circuit judges for appointment as special circuit judges; contributions to special circuit judge fund. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 83, § 2) was repealed by Acts 1962, ch. 9, § 9.

23.320. Application for appointment as special circuit judge. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 83, § 3) was repealed by Acts 1962, ch. 9, § 9.

23.330. Duties of special circuit judges; prohibited activity; removal. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 83, § 4) was repealed by Acts 1962, ch. 9, § 9.

23.340. Compensation of special circuit judges; expense allowance. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 83, § 5) was repealed by Acts 1962, ch. 9, § 9.

23.350. Special circuit judge fund; contributions. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 83, § 6; 1960, ch. 166, § 4) was repealed by Acts 1962, ch. 9, § 9.

23.360. Committee to control and manage fund; appoinment, terms, vacancies, chairman, meetings, expenses. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 83, § 7) was repealed by Acts 1962, ch. 9, § 9.

23.370. Investment of fund; pro rata reduction of allowances. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 83, § 8; 1960, ch. 166, § 5) was repealed by Acts 1962, ch. 9, § 9.

23.380. Refund of contributions to defeated candidate for re-election as circuit judge. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 83, § 1) was repealed by Acts 1962, ch. 9, § 9.

CHAPTER 23A Circuit Court

23A.010. Jurisdiction of Circuit Court — Court of record and of continuous session.

  1. The Circuit Court is a court of general jurisdiction; it has original jurisdiction of all justiciable causes not exclusively vested in some other court.
  2. The Circuit Court has appellate jurisdiction as specified in this chapter.
  3. The Circuit Court is a court of record and of continuous session.
  4. The Circuit Court may be authorized by law to review the actions or decisions of administrative agencies, special districts or boards. Such review shall not constitute an appeal but an original action.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 475, effective January 2, 1978; 1996, ch. 40, § 1, effective July 15, 1996; 2003, ch. 66, § 13, effective June 24, 2003.

NOTES TO DECISIONS

1.In General.

The Circuit Court has jurisdiction of all matters, both in law and equity, of which jurisdiction is not exclusively delegated to some other tribunal, and no statute should be construed to divest it of jurisdiction of any matter unless it is in express terms or clearly so provided. (Decided under prior law)Commonwealth v. Prall, 141 Ky. 560 , 133 S.W. 217 ( Ky. 1911 ).

Court has jurisdiction if the proper parties are before the court and present to it a controversy which the court has authority to decide, and a decision appropriate to that question, though erroneous, is within its jurisdiction. (Decided under prior law)Covington Trust Co. v. Owens, 278 Ky. 695 , 129 S.W.2d 186, 1939 Ky. LEXIS 486 ( Ky. 1939 ).

2.Jurisdiction.

When representation by public defender of suspect in police custody had been requested by family member, there existed justiciable cause, by way of the right created by RCr 2.14, sufficient to invoke the jurisdiction of the state Circuit Court, even prior to an indictment, under Const., § 112(5) and subsection (1) of this section to issue an order requiring police officers to cease questioning of the suspect and allow access to an attorney. West v. Commonwealth, 887 S.W.2d 338, 1994 Ky. LEXIS 102 ( Ky. 1994 ), overruled in part, Commonwealth v. Terrell, 464 S.W.3d 495, 2015 Ky. LEXIS 69 ( Ky. 2015 ).

Generally, state courts of general jurisdiction have in rem subject matter jurisdiction over real property in the state. While a partition action is in the nature of an in rem proceeding, it also has characteristics of a quasi in rem proceeding because it deals with the title to realty and operates as to the parties in the proceeding. Accordingly, a partition action requires both in rem subject matter jurisdiction and personal jurisdiction. Hisle v. Lexington-Fayette Urban County Gov't, 258 S.W.3d 422, 2008 Ky. App. LEXIS 27 (Ky. Ct. App. 2008).

For the purpose of conferring jurisdiction, proof of damages is not required. Jackson v. Beattyville Water Dep't, 278 S.W.3d 633, 2009 Ky. App. LEXIS 28 (Ky. Ct. App. 2009).

Cemetery owner’s complaint and supplemental interrogatory answers, which set out damages allegedly caused by a water department to the cemetery that exceeded $4,000, satisfied the jurisdictional requirements under KRS chs. 23A and 24A for bringing suit in Circuit Court; the damage amount did not have to be proven to establish jurisdiction. Jackson v. Beattyville Water Dep't, 278 S.W.3d 633, 2009 Ky. App. LEXIS 28 (Ky. Ct. App. 2009).

Incumbent was not entitled to a writ of mandamus because a candidate's declaratory judgment action was not a challenge to his bona fides, but was a challenge to the statute that prevented him from being a bona fide candidate, the incumbent failed to satisfy the threshold criteria for obtaining relief by an original action, and there was no sufficient showing that the court lacked subject-matter jurisdiction or acted erroneously within its jurisdiction to the incumbent's irreparable detriment. Davis v. Wingate, 2014 Ky. App. LEXIS 147 (Ky. Ct. App. June 10, 2014), aff'd, 437 S.W.3d 720, 2014 Ky. LEXIS 352 ( Ky. 2014 ).

Court of appeals erred in granting a health care plan's petition for a writ prohibiting the circuit court from enforcing an order staying discovery in declaratory judgment litigation because the circuit court had subject matter jurisdiction since the award of partial summary judgment and the appeal did not implicate whether it had authority to hear the case. the underlying claims related to the plan's action for ascertaining its right to an early termination of a Medicaid contract. Commonwealth v. Wingate, 460 S.W.3d 843, 2015 Ky. LEXIS 16 ( Ky. 2015 ), modified, 2015 Ky. LEXIS 1703 (Ky. May 14, 2015).

3.Criminal Jurisdiction.

Where jurisdiction initially attached in the Circuit Court, it was not lost when that court, during the course of the trial, dismissed one felony count of a three-count indictment; jurisdiction having attached by reason of the felony charge was not divested by its final determination. Broughton v. Commonwealth, 596 S.W.2d 22, 1979 Ky. App. LEXIS 520 (Ky. Ct. App. 1979).

Entry of a guilty plea did not preclude the consideration of whether a transfer order in a juvenile case was facially invalid, and a waiver rule did not apply to a facially insufficient transfer order. Jackson v. Commonwealth, 363 S.W.3d 11, 2012 Ky. LEXIS 25 ( Ky. 2012 ).

4.Concurrent Jurisdiction.

Both federal and state courts have concurrent jurisdiction to enforce collective bargaining agreements, particularly agreements to arbitrate. (Decided under prior law)Harbison-Walker Refractories Co. v. United Brick & Clay Workers, 339 S.W.2d 933, 1960 Ky. LEXIS 492 ( Ky. 1960 ).

5.Equity.

Decision on the facts in suit in equity, where parties agreed court should try issues of fact, must be given same consideration as verdict of properly instructed jury and will not be disturbed unless palpably against weight of evidence. (Decided under prior law)Hagman v. Equitable Life Assurance Soc., 214 Ky. 56 , 282 S.W. 1112, 1926 Ky. LEXIS 310 ( Ky. 1926 ); Horlander v. Owensboro, 289 Ky. 181 , 158 S.W.2d 418, 1942 Ky. LEXIS 527 ( Ky. 1942 ).

6.Injunction.

Although the Circuit Court had original jurisdiction of an action for injunction, it had no right to entertain such a case on appeal from a court that had no jurisdiction. (Decided under prior law) Brady v. Brannon, 134 Ky. 769 , 121 S.W. 679, 1909 Ky. LEXIS 438 ( Ky. 1909 ).

The Circuit Court has jurisdiction to hear and determine injunction suit brought to prevent police judge and other city officials from enforcing license tax ordinance against appellee and from arresting and trying him for alleged violations thereof. (Decided under prior law) Mayfield v. Reed, 278 Ky. 5 , 127 S.W.2d 847, 1939 Ky. LEXIS 367 ( Ky. 1939 ).

Circuit Court had jurisdiction of action against city and officers thereof for declaration of rights and injunction against prosecution of plaintiff for violating city ordinance. (Decided under prior law) Harrodsburg v. Southern R. Co., 278 Ky. 10 , 128 S.W.2d 233, 1939 Ky. LEXIS 389 ( Ky. 1939 ).

Circuit Courts, in considering applications for injunctions, have discretion not only with respect to whether the injunction shall be granted, but also as to when it shall take effect if granted, including the right to impose conditions on which the granting depends. (Decided under prior law) Gregory v. Crain, 291 Ky. 194 , 163 S.W.2d 289, 1942 Ky. LEXIS 187 ( Ky. 194 2).

7.Lien.

Where a creditor has filed suit in a state court to enforce a lien four months before the debtor is adjudged a bankrupt, the creditor may proceed with the action until its termination free from and independent of the bankruptcy court, but the trustee may intervene to take any surplus proceeds after the plaintiff has satisfied his lien. (Decided under prior law) Citizens Bank & Trust Co. v. McEuen, 281 Ky. 113 , 134 S.W.2d 1012, 1939 Ky. LEXIS 22 ( Ky. 1939 ).

8.Review of Administrative Decisions.

The review which subsection (4) of this section provides is discretionary and not every administrative ruling is subject to attack in the courts. Taxpayer's Action Group v. Madison County Bd. of Elections, 652 S.W.2d 666, 1983 Ky. App. LEXIS 294 (Ky. Ct. App. 1983).

The “saving statute” (KRS 413.270 ) was applicable to actions for review/appeal to the Circuit Court from administrative agencies because, under subsection (4) of this section, an appeal to the Circuit Court from an order of an administrative agency is not a true appeal but rather an original action. Jent v. Commonwealth, Natural Resources & Envtl. Protection Cabinet, 862 S.W.2d 318, 1993 Ky. LEXIS 123 ( Ky. 1993 ).

KRS 23A.010 , providing for judicial review of a metro government’s licensing decision, did not guarantee prompt judicial determination within any particular period of time, and without such, or the allowing of contested speech during the appeal period, adult entertainment operators were likely to succeed on the merits of their constitutional challenge of a local ordinance and thus were entitled to injunctive relief. Cam I, Inc. v. Louisville/Jefferson County Metro Gov't, 252 F. Supp. 2d 406, 2003 U.S. Dist. LEXIS 4444 (W.D. Ky. 2003 ), amended, 2003 U.S. Dist. LEXIS 13025 (W.D. Ky. July 18, 2003).

Kentucky Rules of Civil Procedure applied to an action seeking review of a Public Service Commission order; while a builder seeking review of a commission order erred by directing service of process to incorrect parties, the summonses nevertheless issued in good faith, and since the action was otherwise timely commenced, a trial court’s dismissal of the action was improper and was reversed. Arlinghaus Builders v. Ky. PSC, 142 S.W.3d 693, 2003 Ky. App. LEXIS 342 (Ky. Ct. App. 2003).

In this Open Records Act action, the order was reversed in part because the circuit court lacked subject matter jurisdiction to conclude the university violated the Open Meetings Act where neither party invoked the circuit court’s jurisdiction to enforce provisions. Univ. of Ky. v. Hatemi, 636 S.W.3d 857, 2021 Ky. App. LEXIS 114 (Ky. Ct. App. 2021).

9.Original Action in Circuit Court.

Defendants were not left without adequate remedy by dismissal of direct appeal from fiscal court to Circuit Court, since this section provides for original actions in Circuit Court to review actions by fiscal court. Varney v. Varney, 609 S.W.2d 704, 1980 Ky. App. LEXIS 398 (Ky. Ct. App. 1980).

10.Presumption of Regularity.

It is presumed that the Circuit Court has performed its duty and followed the mandatory requirements enjoined upon it by law and the mere failure of its record to show such affirmative steps and actions will not be allowed to overcome that presumption; the burden is cast on the one complaining of noncompliances to prove the noncompliance. (Decided under prior law) Hopkins v. Commonwealth, 279 Ky. 370 , 130 S.W.2d 764, 1939 Ky. LEXIS 274 ( Ky. 1939 ).

11.Subjects Within Jurisdiction.

Circuit Court had jurisdiction, in action by county to cancel a bond issue, to cancel the bonds, to allow a fee in favor of defending counsel whose services were rendered for all defendants as represented by those actually served, and to fix and enforce a lien on the bonds of the defendants for that fee. (Decided under prior law) Covington Trust Co. v. Owens, 278 Ky. 695 , 129 S.W.2d 186, 1939 Ky. LEXIS 486 ( Ky. 1939 ).

The Circuit Court has jurisdiction of proceeding to compel utility to restore service to customer, and application to the Public Service Commission for relief is not a prerequisite for although Service Commission had primary jurisdiction over public utilities in such matters it was not vested with exclusive jurisdiction. (Decided under prior law) Louisville Gas & Electric Co. v. Dulworth, 279 Ky. 309 , 130 S.W.2d 753, 1939 Ky. LEXIS 271 ( Ky. 1939 ).

Circuit Court had jurisdiction over subject matter of action in which plaintiffs claimed damages for severe injuries received by them when wall fell on them due to concurrent and joint negligence of defendants. (Decided under prior law) Brown v. Knuckles, 413 S.W.2d 899, 1967 Ky. LEXIS 403 ( Ky. 1967 ).

One type of writ of prohibition was not granted in a contractual dispute between a health plan and a laboratory because a circuit court was not acting outside of its jurisdiction when it ordered a deposit of money into the court; circuit courts had jurisdiction over contractual payments when the amount in controversy exceeded the minimum jurisdictional limit. PremierTox 2.0 v. Miniard, 407 S.W.3d 542, 2013 Ky. LEXIS 385 ( Ky. 2013 ).

Circuit court in Kentucky had subject matter jurisdiction to hear a foreclosure case via statute and the Kentucky Constitution. Cubar v. Town & Country Bank & Trust Co., 473 S.W.3d 91, 2015 Ky. App. LEXIS 128 (Ky. Ct. App. 2015).

12.Subjects Outside Jurisdiction.

The Circuit Court has no jurisdiction to entertain an independent action to set aside or modify a judgment of a fiscal court fixing the compensation of public officers pursuant to KRS 67.130 . (Decided under prior law)Wolfe County v. Tolson, 283 Ky. 11 , 140 S.W.2d 671, 1940 Ky. LEXIS 287 ( Ky. 1940 ).

13.— Federal Laws.

The state courts have no jurisdiction of questions arising under the National Labor Relations Act, but are not deprived of jurisdiction of questions involving landlord and tenant merely because the landlord is also the employer of the tenant. (Decided under prior law) Coldiron v. Good Coal Co., 276 Ky. 833 , 125 S.W.2d 757, 1939 Ky. LEXIS 601 ( Ky. 1939 ).

The state courts are not concerned with the infringement of patents; that is a matter exclusively for the federal courts. (Decided under prior law)Acy v. Whaley, 281 Ky. 400 , 136 S.W.2d 575, 1940 Ky. LEXIS 58 ( Ky. 1940 ).

14.Fiscal Courts.

The appropriate standard of review for a Circuit Court to employ when considering the actions of a Fiscal Court regarding the closing of a county road is limited to determining whether the decision not to close the road was arbitrary, including whether there was substantial evidence to support the decision. A trial de novo is expressly prohibited. Trimble Fiscal Court v. Snyder, 866 S.W.2d 124, 1993 Ky. App. LEXIS 154 (Ky. Ct. App. 1993).

“Original action” necessarily encompassed a trial de novo. A challenge to the Fiscal Court’s action must be designated an “original action,” because the Fiscal Court is not a judicial court, which precludes an “appeal” per se. Nonetheless, calling the proceeding an original action does not convert the review of a local legislative body’s decision into a trial de novo. Rather, the proper standard for review is that applicable to all such matters. Trimble Fiscal Court v. Snyder, 866 S.W.2d 124, 1993 Ky. App. LEXIS 154 (Ky. Ct. App. 1993).

A claimant who appeals from an order of the fiscal court disallowing his claim cannot recover a greater amount in the Circuit Court than that claimed before the fiscal court. (Decided under prior law)Hudgins v. Carter County, 115 Ky. 133 , 72 S.W. 730, 24 Ky. L. Rptr. 1980 , 1903 Ky. LEXIS 75 ( Ky. 1903 ).

Appeals from fiscal courts to the Circuit Court are to be tried de novo in the Circuit Court, as if no judgment had been rendered. (Decided under prior law)Jefferson County v. Young, 120 Ky. 456 , 86 S.W. 985, 27 Ky. L. Rptr. 849 , 1905 Ky. LEXIS 116 ( Ky. 1905 ).

The matter of appeal to the Circuit Court from an order allowing a claim in the fiscal court is a summary, simple method of trying the dispute between the claimant and the county. The pleadings may be written or oral and the matter is tried de novo. (Decided under prior law)Owen County v. Walker, 141 Ky. 516 , 133 S.W. 236, 1911 Ky. LEXIS 43 ( Ky. 1911 ).

Since county treasurer could only act as ordered by the fiscal court claim for sum of approximately $500 for newspaper advertising of treasurer’s report is against fiscal court and not treasurer. (Decided under prior law) Enterprise Publishing Co. v. Harlan County, 310 S.W.2d 551, 1958 Ky. LEXIS 400 ( Ky. 1958 ).

15.— Allowances, Sufficiency.

Excessive allowances to clerk by fiscal court may be corrected by the Circuit Court on an appeal prosecuted for the county by the county attorney. (Decided under prior law) Elliott v. Commonwealth, 144 Ky. 335 , 138 S.W. 300, 1911 Ky. LEXIS 626 ( Ky. 1911 ); Commonwealth Use Hickman County v. Scarborough, 148 Ky. 561 , 147 S.W. 31, 1912 Ky. LEXIS 496 ( Ky. 1912 ).

Where the fiscal court allowed expenses to a county employee, the proper method of determining the power of the fiscal court to do so was appeal to the Circuit Court of the county, and a declaratory judgment action for the purpose was improper. (Decided under prior law)Oldham County ex rel. Wooldridge v. Arvin, 244 Ky. 551 , 51 S.W.2d 657, 1932 Ky. LEXIS 463 ( Ky. 1932 ).

Where county jailer’s request for compensation for heat, fuel, and light furnished jail and inferior court was turned down by fiscal court, jailer had adequate remedy at law by appeal to Circuit Court and injunction would not be appropriate. (Decided under prior law) Pulaski County v. Decker, 312 Ky. 796 , 229 S.W.2d 968, 1950 Ky. LEXIS 776 ( Ky. 1950 ).

Where fiscal court directed payment of $311.44 on bill of $519.06 submitted by publishing company, issue as to sufficiency of allowance of fiscal court should have been raised by an appeal, and company could not maintain independent action for entire claim. (Decided under prior law)Enterprise Publishing Co. v. Harlan County, 310 S.W.2d 551, 1958 Ky. LEXIS 400 ( Ky. 1958 ).

Where claimant for advertising of treasurer’s report in newspaper had submitted bill for $519.06 but fiscal court order had directed payment of only $311.44, fiscal court admitted its liability by its order allowing claimant compensation for its services and the only question to be presented to a Circuit Court was the sufficiency of the allowance and this issue should have been raised by appeal from the fiscal court order and trial court properly declined to entertain this claim in an independent action. (Decided under prior law) Enterprise Publishing Co. v. Harlan County, 310 S.W.2d 551, 1958 Ky. LEXIS 400 ( Ky. 1958 ).

When the fiscal court has taken jurisdiction to adjudicate the amount of a claim the claimant should not be permitted to ignore the order and by independent action have the Circuit Court pass upon this issue in a de novo proceeding. (Decided under prior law) Enterprise Publishing Co. v. Harlan County, 310 S.W.2d 551, 1958 Ky. LEXIS 400 ( Ky. 1958 ).

Where a claim against a county has been rejected by the fiscal court, the claimant has the option of either appealing from the fiscal court order or bringing an independent action, but an original independent action can only be maintained where the fiscal court has wholly rejected the claim and it makes no difference whether the claimant has actually received and accepted the allowance made or not. (Decided under prior law)Enterprise Publishing Co. v. Harlan County, 310 S.W.2d 551, 1958 Ky. LEXIS 400 ( Ky. 1958 ).

16.— Appealable Orders.

Appeal is not the proper method of attacking a fiscal court order as void. (Decided under prior law) Monroe County Court v. Miller, 132 Ky. 102 , 116 S.W. 272, 1909 Ky. LEXIS 87 ( Ky. 1909 ).

Though a consent order of the fiscal court fixing the salary of the county judge (now county judge/executive) is void, no appeal lies therefrom unless a motion to set it aside is first made and overruled. (Decided under prior law) Monroe County Court v. Miller, 132 Ky. 102 , 116 S.W. 272, 1909 Ky. LEXIS 87 ( Ky. 1909 ).

Discretion of fiscal court in making an appropriation within its power can be reviewed only by an appeal to the Circuit Court. (Decided under prior law) Caldwell County v. Durret Const. Co., 180 Ky. 594 , 203 S.W. 291, 1918 Ky. LEXIS 98 ( Ky. 1918 ).

Order which was simply a contract between the fiscal court and the sureties on sheriff’s bond was not a judgment from which an appeal could be taken. (Decided under prior law) Leslie County v. Maggard, 227 Ky. 583 , 13 S.W.2d 766, 1929 Ky. LEXIS 924 ( Ky. 1929 ).

Where fiscal court was proceeding erroneously in canceling warrants issued for medical care furnished poor of county, remedy by appeal existed to correct erroneous order. (Decided under prior law) Stumbo v. Clark, 255 Ky. 287 , 73 S.W.2d 8, 1934 Ky. LEXIS 208 ( Ky. 1934 ).

All orders of the fiscal court are appealable. (Decided under prior law) Shreve v. Taylor County Public Library Board, 419 S.W.2d 779, 1967 Ky. LEXIS 198 ( Ky. 1967 ).

Order of fiscal court establishing a public library district pursuant to KRS 173.710 to 173.800 is appealable by member of fiscal court and citizens and taxpayers. (Decided under prior law)Shreve v. Taylor County Public Library Board, 419 S.W.2d 779, 1967 Ky. LEXIS 198 ( Ky. 1967 ).

An appeal from a judgment of the fiscal court refusing to close a road may be taken to the Circuit Court. (Decided under prior law)Walker v. Lyon County Fiscal Court, 425 S.W.2d 730, 1968 Ky. LEXIS 429 ( Ky. 1968 ).

17.— Appeal Bond.

County attorney may prosecute an appeal to the Circuit Court in the name of the county from an order of the fiscal court allowing a claim, without executing an appeal bond. (Decided under prior law) Clay County v. Roach, 174 Ky. 436 , 192 S.W. 489, 1917 Ky. LEXIS 194 ( Ky. 1917 ).

18.— Proper Appellant.

Either the claimant or the county may prosecute an appeal from a judgment of the fiscal court upon a claim presented to it, and upon which it passes. (Decided under prior law) Jefferson County v. Waters, 111 Ky. 286 , 63 S.W. 613, 23 Ky. L. Rptr. 669 , 1901 Ky. LEXIS 201 ( Ky. 1901 ).

An appeal will lie to the Circuit Court from an order of the fiscal court fixing the salary of a county officer, by the officer or by any person aggrieved, including a taxpayer or a bona fide candidate for the office. (Decided under prior law) Caddell v. Fiscal Court of Whitley County, 258 Ky. 114 , 79 S.W.2d 407, 1935 Ky. LEXIS 119 ( Ky. 1935 ). See Butler County v. Gardner, 96 S.W. 582, 29 Ky. L. Rptr. 922 (1906); Monroe County Court v. Miller, 132 Ky. 102 , 116 S.W. 272, 1909 Ky. LEXIS 87 ( Ky. 1909 ); Breathitt County v. Turner, 223 Ky. 727 , 4 S.W.2d 695, 1928 Ky. LEXIS 419 ( Ky. 1928 ); Akins v. Peak, 239 Ky. 847 , 40 S.W.2d 324, 1931 Ky. LEXIS 852 ( Ky. 1931 ).

County attorney has authority to prosecute appeal from order of fiscal court without being ordered to do so by the fiscal court. (Decided under prior law) Johnson County v. High Test Oil & Gas Co., 267 Ky. 760 , 103 S.W.2d 272, 1937 Ky. LEXIS 385 ( Ky. 1937 ). See Kenton County by Hanlon v. Jameson, 150 Ky. 440 , 150 S.W. 528, 1912 Ky. LEXIS 916 ( Ky. 1912 ); Knott County v. Michael, 264 Ky. 36 , 94 S.W.2d 44, 1936 Ky. LEXIS 271 ( Ky. 1936 ).

Any aggrieved person may appeal from an order of the fiscal court. (Decided under prior law) Howard v. Saylor, 305 Ky. 504 , 204 S.W.2d 815, 1947 Ky. LEXIS 852 ( Ky. 1947 ).

County judge (now county judge/executive) had authority to appeal to Circuit Court from fiscal court order employing county auditor, and he was not required to first request county attorney to prosecute the appeal. (Decided under prior law) Howard v. Saylor, 305 Ky. 504 , 204 S.W.2d 815, 1947 Ky. LEXIS 852 ( Ky. 1947 ).

The county attorney has authority to prosecute an appeal from an order of the fiscal court allowing unjust or illegally presented claims and such authority can be exercised by him contrary to the wishes or directions of the fiscal court. (Decided under prior law)Hoskins v. Leslie County Fiscal Court, 242 S.W.2d 874, 1951 Ky. LEXIS 1086 ( Ky. 1951 ).

19.Appeals.

A statutory “appeal” to the Circuit Court from any agency or tribunal other than the District Court is an original action and not an “appeal.” Sarver v. County of Allen, 582 S.W.2d 40, 1979 Ky. LEXIS 263 ( Ky. 1979 ).

Issuance of summons upon the Attorney General commenced the appeal to the Circuit Court from the order of the administrative agency; once commenced, the mere delay in serving the secretary did not defeat the action. Commonwealth, Transp. Cabinet, Dep't of Highways v. Campbellsville, 740 S.W.2d 162, 1987 Ky. App. LEXIS 530 (Ky. Ct. App. 1987).

Language of Ky. Rev. Stat. § 23A.010 is a legislative directive that the judicial review of administrative actions shall be governed by the same procedural rules of the courts applicable to original actions; the judicial review authorized by Ky. Rev. Stat. § 100.347(2) falls squarely within that mandate. Isaacs v. Caldwell, 530 S.W.3d 449, 2017 Ky. LEXIS 439 ( Ky. 2017 ).

Cited:

Dalton v. First Nat’l Bank, 712 S.W.2d 954, 1986 Ky. App. LEXIS 1165 (Ky. Ct. App. 1986); Wood v. Wingfield, 816 S.W.2d 899, 1991 Ky. LEXIS 70 ( Ky. 1991 ); Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 2000 U.S. App. LEXIS 1245 (6th Cir. 2000); Worrell v. Stivers, 523 S.W.3d 436, 2017 Ky. App. LEXIS 30 (Ky. Ct. App. 2017).

Opinions of Attorney General.

The phrase, “may be authorized by law,” in subsection (4) of this section suggests that the review, which is not an appeal but an original action, is an inchoate authority and requires some further and positive legislative act or rule of the Supreme Court of Kentucky to permit such original actions. OAG 79-401 .

The terms, “administrative agencies, special districts or boards,” used in subsection (4) of this section, do not include fiscal courts. OAG 79-401 .

KRS 61.170 requires an indictment by a Circuit Court grand jury in order to charge the offense of malfeasance or neglect of county officers; but since KRS 24A.110 vests exclusive jurisdiction of misdemeanor cases, generally, in the District Court, the Circuit Court in which such an indictment is returned has necessarily, because of the jurisdictional statute, the authority and duty to refer the indictment for trial or other appropriate disposition to the district court of that county. OAG 80-152 .

Under the broad legislative policy expressed in KRS 178.080 and 178.115 , the acceptance of a road as a part of the county road system is left to the sound discretion of the fiscal court under the specific guidelines set out in those sections. The action of a fiscal court in exercising such discretion could be reviewed, by direct action, in a Circuit Court as an alleged arbitrary or capricious exercise of the discretion; no appeal can be taken from a fiscal court order to the District Court, however, since that court has no appellate jurisdiction. OAG 82-445 .

Research References and Practice Aids

Cross-References.

Administrative orders, jurisdiction to enforce or review orders of:

Air Pollution Control District, Hearing Board of, appeal from, KRS 77.305 .

Airport Zoning Board of Appeals, appeals from, KRS 183.871 .

Board of Assessment Appeals, appeals from, KRS 133.120 .

Board of Dentistry, KRS 313.085 .

Cabinet for Human Resources, secretary of, revoking or suspending license of frozen food locker plant, KRS 221.040 .

City Civil Service Commission, KRS 90.370 , 95.766 .

City or county planning units, KRS 100.347 .

County Debt Commission, KRS 66.310 .

Damages claims against state agencies, appeals from Board of Claims, KRS 44.140 .

Department of Mines and Minerals, KRS 351.040 .

Health facilities and services, appeal to Franklin Circuit Court concerning certificate of need or license, KRS 216B.115 .

Occupational Safety and Health Review Commission, KRS 338.091 .

Planning commission, appeals from, KRS 100.347 .

Police or firemen in fourth-class or fifth-class city, removal or discipline by city council, appeals from, KRS 95.766 .

Public assistance, appeals to Circuit Court from refusal to grant assistance or granting of insufficient assistance, KRS 205.231 .

Public Service Commission, KRS 278.410 .

Revenue Cabinet, KRS 131.130 , 131.140 .

Slum clearance and redevelopment agencies, KRS 99.390 .

Soil Conservation District Board of Adjustment, KRS 262.520 .

State Real Estate Commission, KRS 324.200 .

Teacher’s contract, orders of Board of Education terminating, appeal from, KRS 161.790 .

Transportation Cabinet, under Motorists’ Financial Responsibility Law, KRS 187.300 .

Appeals, right of, Const., § 115.

Circuit clerk, KRS 30A.010 to 30A.435 .

Commonwealth, bond not required to prosecute remedy, KRS 454.190 .

Commonwealth’s attorney, Circuit Judge to enforce penalty against for neglect of duty, KRS 61.130 .

County government, KRS Ch. 67.

County law library in county containing second-class city, Circuit Judges to control, KRS 172.170 .

Court of Appeals, KRS Ch. 22A.

Court of Justice, KRS Ch. 26A.

Criminal jurisdiction:

Extradition proceedings, KRS 440.290 , 440.300 .

Probation, KRS Ch. 439.

Districts, Const., § 112; KRS Ch. 24A.

Elisor, Circuit Judge may appoint, KRS 70.200 .

Fees of Commissioners of Circuit Court, A.P., Part IV, §§ 1-4, 16.

Friend of the court, power to appoint in certain counties, KRS 403.090 .

Jailer is officer of court, KRS 71.050 .

Jailer, judge not to be surety on bond of, KRS 71.010 .

Judicial power vested in courts, Const., § 109.

Jurisdiction in particular proceedings:

Adoption, KRS 199.470 .

Annexation proceedings by cities, KRS 81A.020 , 81A.400 to 81A.520 .

Attachments for rent, KRS 383.030 .

Divorce, actions for, KRS 403.010 , 403.140 .

Drainage district case, if amount exceeds ten dollars, KRS 269.200 .

Elections:

Contest of elections, KRS 120.055 , 120.065 , 120.155 , 120.165 .

County board of elections, appeal from, KRS 116.135 .

Escheats, where property in control of federal court, KRS 393.170 .

Mental illness, involuntary hospitalization, proceedings for, KRS 202A.051 .

Mentally ill person, detention without warrant, KRS 202A.041 .

Public assistance payments, recovery, KRS 205.227 .

Removal of peace officers, KRS 61.300 , 63.170 .

Soil conservation districts, enforcement of land-use ordinances, KRS 262.430 .

Jurisdiction to be uniform, Const., § 59(1).

Marriage, affirmed or avoided by Circuit Court, KRS 402.250 .

Master commissioner and receiver, appointment, salary, number of deputies, KRS Ch. 31A.

National guard, Circuit Judge may call out, KRS 38.030 .

Oath, judge may administer official, KRS 62.020 .

Record books, preservation and replacement, KRS 30A.080 .

Record of resignation of Commonwealth’s attorney or circuit clerk, judge to make, KRS 63.010 .

Retirement of Circuit Judges, KRS 21.350 to 21.480 .

Salaries of Circuit Judges, Const., § 246; KRS 48.195 .

Sale of business opportunities in violation of law, restraining order or injunction against, KRS 367.817 .

Sheriff, judge not to be surety on bond for, KRS 70.020 .

Special or local acts regulating jurisdiction of Circuit Court prohibited, Const., § 59(1).

Supreme Court, KRS Ch. 21A.

Vacancy in office of Circuit Judge to be filled by Governor, KRS 63.190 .

Venue:

Change of venue, KRS. Ch. 452.

Civil, KRS 452.400 to 452.500 .

Criminal:

Generally, KRS 452.510 to 452.530 , 452.560 .

Offenses by common carriers, KRS 277.990 .

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 13.

Siler, A Calculated Risk: Removal of the Indeterminate Complaint, Vol. 54, No. 4, Winter 1990, Ky. Bench & Bar 19.

Kentucky Law Journal.

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1107 (1992-93).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Notification of Withdrawal from School, Form 256.08.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Circuit Court, § 4.00.

Petrilli, Kentucky Family Law, Court Procedure, § 23.1.

23A.020. Judicial circuits.

The state is divided into judicial circuits, each to be composed of the following counties:

  1. First Judicial Circuit. Ballard, Carlisle, Fulton, and Hickman.
  2. Second Judicial Circuit. McCracken.
  3. Third Judicial Circuit. Christian.
  4. Fourth Judicial Circuit. Hopkins.
  5. Fifth Judicial Circuit. Crittenden, Union, and Webster.
  6. Sixth Judicial Circuit. Davies.
  7. Seventh Judicial Circuit. Logan and Todd.
  8. Eighth Judicial Circuit. Warren.
  9. Ninth Judicial Circuit. Hardin.
  10. Tenth Judicial Circuit. Hart, Larue, and Nelson.
  11. Eleventh Judicial Circuit. Green, Marion, Taylor, and Washington.
  12. Twelfth Judicial Circuit. Henry, Oldham, and Trimble.
  13. Thirteenth Judicial Circuit. Garrard and Jessamine.
  14. Fourteenth Judicial Circuit. Bourbon, Scott, and Woodford.
  15. Fifteenth Judicial Circuit. Carroll, Grant, and Owen.
  16. Sixteenth Judicial Circuit. Kenton.
  17. Seventeenth Judicial Circuit. Campbell.
  18. Eighteenth Judicial Circuit. Harrison, Nicholas, Pendleton, and Robertson.
  19. Nineteenth Judicial Circuit. Bracken, Fleming, and Mason.
  20. Twentieth Judicial Circuit. Greenup and Lewis.
  21. Twenty-first Judicial Circuit. Bath, Menifee, Montgomery, and Rowan.
  22. Twenty-second Judicial Circuit. Fayette.
  23. Twenty-third Judicial Circuit. Estill, Lee, and Owsley.
  24. Twenty-fourth Judicial Circuit. Lawrence, Johnson, and Martin.
  25. Twenty-fifth Judicial Circuit. Clark and Madison.
  26. Twenty-sixth Judicial Circuit. Harlan.
  27. Twenty-seventh Judicial Circuit. Knox and Laurel.
  28. Twenty-eighth Judicial Circuit. Lincoln, Pulaski, and Rockcastle.
  29. Twenty-ninth Judicial Circuit. Adair and Casey.
  30. Thirtieth Judicial Circuit. Jefferson.
  31. Thirty-first Judicial Circuit. Floyd.
  32. Thirty-second Judicial Circuit. Boyd.
  33. Thirty-third Judicial Circuit. Perry.
  34. Thirty-fourth Judicial Circuit. Whitley and McCreary.
  35. Thirty-fifth Judicial Circuit. Pike.
  36. Thirty-sixth Judicial Circuit. Magoffin and Knott.
  37. Thirty-seventh Judicial Circuit. Carter, Elliott, and Morgan.
  38. Thirty-eighth Judicial Circuit. Butler, Edmonson, Ohio, and Hancock.
  39. Thirty-ninth Judicial Circuit. Breathitt, Wolfe, and Powell.
  40. Fortieth Judicial Circuit. Clinton, Cumberland, and Monroe.
  41. Forty-first Judicial Circuit. Clay, Jackson, and Leslie.
  42. Forty-second Judicial Circuit. Calloway and Marshall.
  43. Forty-third Judicial Circuit. Barren and Metcalfe.
  44. Forty-fourth Judicial Circuit. Bell.
  45. Forty-fifth Judicial Circuit. Muhlenberg and McLean.
  46. Forty-sixth Judicial Circuit. Breckinridge, Grayson, and Meade.
  47. Forty-seventh Judicial Circuit. Letcher.
  48. Forty-eighth Judicial Circuit. Franklin.
  49. Forty-ninth Judicial Circuit. Allen and Simpson.
  50. Fiftieth Judicial Circuit. Boyle and Mercer.
  51. Fifty-first Judicial Circuit. Henderson.
  52. Fifty-second Judicial Circuit. Graves.
  53. Fifty-third Judicial Circuit. Shelby, Anderson, and Spencer.
  54. Fifty-fourth Judicial Circuit. Boone and Gallatin.
  55. Fifty-fifth Judicial Circuit. Bullitt.
  56. Fifty-sixth Judicial Circuit. Caldwell, Livingston, Lyon, and Trigg.
  57. Fifty-seventh Judicial Circuit. Russell and Wayne.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 476; 1992, ch. 356, § 2, effective July 14, 1992; 2001, ch. 72, § 1, effective June 21, 2001.

NOTES TO DECISIONS

1.Creation of New Districts.

An act creating a new district is not required to be passed at the first session after an enumeration. (Decided under prior law) Brown v. Moss, 126 Ky. 833 , 105 S.W. 139, 31 Ky. L. Rptr. 1288 , 1907 Ky. LEXIS 106 ( Ky. 1907 ).

The legislature in creating a new district may provide such details as are necessary to carry the act into effect without confusion in the public business. (Decided under prior law) Watkins v. Snyder, 148 Ky. 733 , 147 S.W. 899, 1912 Ky. LEXIS 542 ( Ky. 1912 ).

2.Changing Judicial Districts.

An act changing judicial districts without creating a new district is invalid unless it complies with Const., §§ 128 (repealed) and 59, and is passed at the first legislative session after an enumeration. (Decided under prior law)Fields v. Nickell, 248 Ky. 526 , 58 S.W.2d 912, 1933 Ky. LEXIS 264 ( Ky. 1933 ).

3.Commonwealth’s Attorney.

When the legislature, in creating a new district, provided that the Commonwealth’s Attorney in one of the old districts from which counties were taken to form the new district should be Commonwealth’s Attorney for the new district, he was entitled to remain in office in the new district up to the end of the term for which he was elected. (Decided under prior law)Watkins v. Snyder, 148 Ky. 733 , 147 S.W. 899, 1912 Ky. LEXIS 542 ( Ky. 1912 ).

When a new district is created by taking counties out of old districts, the Commonwealth’s Attorney of each of the old districts continues in his old district as Commonwealth’s Attorney, and has a reasonable time after the act takes effect to change his residence. (Decided under prior law) McCreary v. Fields, 148 Ky. 730 , 147 S.W. 901, 1912 Ky. LEXIS 543 ( Ky. 1912 ). See Adams v. Roberts, 119 Ky. 364 , 83 S.W. 1035, 26 Ky. L. Rptr. 1271 , 1904 Ky. LEXIS 173 ( Ky. 1904 ).

Research References and Practice Aids

Cross-References.

Consolidation of counties, disposition of districts upon, KRS 67.280 .

Kentucky Bench & Bar.

Bartlett, The Selection and Election of Judges in Kentucky, Vol. 53, No. 3, Summer 1989, Ky. Bench & Bar 26.

23A.030. Judicial circuits with one Circuit Judge.

Each judicial circuit shall have one (1) Circuit Judge, except as otherwise provided.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 477.

23A.040. Judicial circuits with two Circuit Judges and two numbered divisions. [Effective until January 2, 2023]

The following judicial circuits are entitled to two (2) judges and shall have two (2) numbered divisions of the Circuit Court:

  1. Fourth Judicial Circuit.
  2. Fifth Judicial Circuit.
  3. Tenth Judicial Circuit.
  4. Eleventh Judicial Circuit.
  5. Twelfth Judicial Circuit.
  6. Thirteenth Judicial Circuit.
  7. Eighteenth Judicial Circuit.
  8. Twentieth Judicial Circuit.
  9. Twenty-first Judicial Circuit.
  10. Twenty-fourth Judicial Circuit.
  11. Thirty-second Judicial Circuit.
  12. Thirty-fourth Judicial Circuit.
  13. Thirty-seventh Judicial Circuit.
  14. Thirty-eighth Judicial Circuit.
  15. Thirty-ninth Judicial Circuit.
  16. Forty-first Judicial Circuit.
  17. Forty-second Judicial Circuit.
  18. Forty-third Judicial Circuit.
  19. Forty-sixth Judicial Circuit.
  20. Forty-ninth Judicial Circuit.
  21. Fiftieth Judicial Circuit.
  22. Fifty-first Judicial Circuit.
  23. Fifty-third Judicial Circuit.
  24. Fifty-seventh Judicial Circuit.

HISTORY: Enact. Acts 1976 (Ex. Sess.), ch. 14, § 478; 1980, ch. 247, § 1, effective July 15, 1980; 1992, ch. 356, § 1, effective July 14, 1992; 1996, ch. 204, § 2, effective October 1, 1996; 1996, ch. 377, § 2, effective October 1, 1996; 1998, ch. 517, §§ 3, 12, effective September 1, 1998, January 1, 1999, and September 1, 1999; 2000, ch. 541, § 1, effective July 1, 2000; 2001, ch. 72, § 2, effective June 21, 2001; 2003, ch. 66, § 4, effective June 24, 2003; 2005, ch. 173, § Pt. XIII, 1.(3), § 1, effective July 15, 2006; 2006, ch. 250, § 1, effective January 1, 2007; 2017 ch. 75, § 1, effective March 21, 2017; 2018 ch. 57, § 2, effective July 14, 2018.

Legislative Research Commission Notes.

(1/1/2007). 2006 Ky. Acts ch. 205, Part V, sec. 6, provides that the new judgeships created by subsections (1), (16), (21) and (26) of this statute shall become effective January 1, 2007.

(3/21/2017). 2017 Ky. Acts ch. 75, sec. 4, provides that the amendments to this statute in Section 1 of that Act apply retroactively to April 16, 2016.

23A.040. Judicial circuits with two Circuit Judges and two numbered divisions. [Effective January 2, 2023]

The following judicial circuits are entitled to two (2) judges and shall have two (2) numbered divisions of the Circuit Court:

  1. Fourth Judicial Circuit.
  2. Fifth Judicial Circuit.
  3. Tenth Judicial Circuit.
  4. Eleventh Judicial Circuit.
  5. Twelfth Judicial Circuit.
  6. Thirteenth Judicial Circuit.
  7. Eighteenth Judicial Circuit.
  8. Twentieth Judicial Circuit.
  9. Twenty-first Judicial Circuit.
  10. Twenty-fourth Judicial Circuit.
  11. Thirty-first Judicial Circuit.
  12. Thirty-second Judicial Circuit.
  13. Thirty-fourth Judicial Circuit.
  14. Thirty-seventh Judicial Circuit.
  15. Thirty-eighth Judicial Circuit.
  16. Thirty-ninth Judicial Circuit.
  17. Forty-first Judicial Circuit.
  18. Forty-second Judicial Circuit.
  19. Forty-third Judicial Circuit.
  20. Forty-sixth Judicial Circuit.
  21. Forty-ninth Judicial Circuit.
  22. Fiftieth Judicial Circuit.
  23. Fifty-first Judicial Circuit.
  24. Fifty-third Judicial Circuit.
  25. Fifty-seventh Judicial Circuit.

HISTORY: Enact. Acts 1976 (Ex. Sess.), ch. 14, § 478; 1980, ch. 247, § 1, effective July 15, 1980; 1992, ch. 356, § 1, effective July 14, 1992; 1996, ch. 204, § 2, effective October 1, 1996; 1996, ch. 377, § 2, effective October 1, 1996; 1998, ch. 517, §§ 3, 12, effective September 1, 1998, January 1, 1999, and September 1, 1999; 2000, ch. 541, § 1, effective July 1, 2000; 2001, ch. 72, § 2, effective June 21, 2001; 2003, ch. 66, § 4, effective June 24, 2003; 2005, ch. 173, § Pt. XIII, 1.(3), § 1, effective July 15, 2006; 2006, ch. 250, § 1, effective January 1, 2007; 2017 ch. 75, § 1, effective March 21, 2017; 2018 ch. 57, § 2, effective July 14, 2018; 2018 ch. 57, § 6, effective January 2, 2023.

Legislative Research Commission Notes.

(1/2/2023). This statute was amended by 2018 Ky. Acts ch. 57, secs. 2 and 6, which do not appear to be in conflict and have been codified together.

23A.045. Judicial circuits with three Circuit Judges and three numbered divisions. [Effective until January 2, 2023]

The following judicial circuits are entitled to three (3) Circuit Judges and shall have three (3) numbered divisions of the Circuit Court:

  1. Second Judicial Circuit.
  2. Third Judicial Circuit.
  3. Sixth Judicial Circuit.
  4. Fourteenth Judicial Circuit.
  5. Seventeenth Judicial Circuit.
  6. Twenty-seventh Judicial Circuit.
  7. Thirty-first Judicial Circuit.
  8. Thirty-fifth Judicial Circuit.
  9. Forty-eighth Judicial Circuit.
  10. Fifty-fifth Judicial Circuit.

HISTORY: Enact. Acts 1998, ch. 517, §§ 4, 12, effective September 1, 1998 and September 1, 1999; 2000, ch. 541, § 2, effective July 1, 2000; 2003, ch. 66, § 5, effective June 24, 2003; 2005, ch. 173, Pt. XIII, 1.(3), § 2, effective July 15, 2006; 2006, ch. 250, § 2, effective January 1, 2007; 2017 ch. 75, § 2, effective March 21, 2017; 2018 ch. 57, § 3, effective July 14, 2018.

Legislative Research Commission Notes.

(1/1/2007). 2006 Ky. Acts ch. 250, Part V, sec. 6, provides that the new judgeships created by subsections (3) and (10) of this statute shall become effective January 1, 2007.

(3/21/2017). 2017 Ky. Acts ch. 75, sec. 4, provides that the amendments to this statute in Section 2 of that Act apply retroactively to April 16, 2016.

23A.045. Judicial circuits with three Circuit Judges and three numbered divisions. [Effective January 2, 2023]

The following judicial circuits are entitled to three (3) Circuit Judges and shall have three (3) numbered divisions of the Circuit Court:

  1. Second Judicial Circuit.
  2. Third Judicial Circuit.
  3. Sixth Judicial Circuit.
  4. Fourteenth Judicial Circuit.
  5. Seventeenth Judicial Circuit.
  6. Twenty-seventh Judicial Circuit.
  7. Thirty-fifth Judicial Circuit.
  8. Forty-eighth Judicial Circuit.
  9. Fifty-fifth Judicial Circuit.

HISTORY: Enact. Acts 1998, ch. 517, §§ 4, 12, effective September 1, 1998 and September 1, 1999; 2000, ch. 541, § 2, effective July 1, 2000; 2003, ch. 66, § 5, effective June 24, 2003; 2005, ch. 173, Pt. XIII, 1.(3), § 2, effective July 15, 2006; 2006, ch. 250, § 2, effective January 1, 2007; 2017 ch. 75, § 2, effective March 21, 2017; 2018 ch. 57, § 3, effective July 14, 2018; 2018 ch. 57, § 7, effective January 2, 2023.

Legislative Research Commission Notes.

(1/2/2023). This statute was amended by 2018 Ky. Acts ch. 57, secs. 3 and 7, which do not appear to be in conflict and have been codified together.

23A.050. Judicial circuits with four Circuit Judges and four numbered divisions.

The following judicial circuits are entitled to four (4) judges and shall have four (4) numbered divisions of the Circuit Court:

  1. Eighth Judicial Circuit.
  2. Ninth Judicial Circuit.
  3. Twenty-fifth Judicial Circuit.
  4. Twenty-eighth Judicial Circuit.
  5. Fifty-fourth Judicial Circuit.

HISTORY: Enact. Acts 1976 (Ex. Sess.), ch. 14, § 479; 2003, ch. 66, § 6, effective June 24, 2003; 2005, ch. 173, Pt. XIII, 1.(3), § 3, effective July 15, 2006; 2006, ch. 250, § 3, effective January 1, 2007; 2009, ch. 44, § 2, effective August 1, 2010; 2018 ch. 57, § 4, effective July 14, 2018.

Legislative Research Commission Notes.

(1/1/2007). 2006 Ky. Acts ch. 250, Part V, sec. 6, provides that the new judgeships created by subsection (2) of this statute shall become effective January 1, 2007.

23A.055. Sixteenth Judicial Circuit.

The Sixteenth Judicial Circuit is entitled to five (5) judges and shall have five (5) numbered divisions of the Circuit Court.

History. Enact. Acts 2009, ch. 44, § 1, effective August 1, 2010.

Legislative Research Commission Notes.

(8/1/2010). 2009 Ky. Acts ch. 44, sec. 1, provides that the new judgeship created by this statute shall become effective August 1, 2010.

23A.060. Twenty-second Judicial Circuit.

The Twenty-second Judicial Circuit is entitled to nine (9) judges and shall have nine (9) numbered divisions of the Circuit Court.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 480; 1996, ch. 204, § 1, effective October 1, 1996; 2003, ch. 66, § 7, effective June 24, 2003.

NOTES TO DECISIONS

Cited:

Woodward v. Commonwealth, 949 S.W.2d 599, 1997 Ky. LEXIS 75 ( Ky. 1997 ).

23A.070. Thirtieth Judicial Circuit — Family court — Funds from previously created campaign accounts.

  1. The Thirtieth Judicial Circuit is entitled to twenty-three (23) judges and shall have twenty-three (23) numbered divisions of the Circuit Court. The Circuit Court divisions designated for family court shall be consecutively numbered beginning with the Thirtieth Judicial Circuit, First Division, Family Court. All other Circuit Court divisions shall be consecutively numbered beginning with the Thirtieth Judicial Circuit, First Division, and shall appear on the ballot prior to the designated family court divisions. These designations shall apply for election purposes and all other purposes.
  2. Notwithstanding any provision of KRS 121.180(10) to the contrary, a judicial candidate whose division number is altered pursuant to subsection (1) of this section subsequent to the establishment of a campaign account with the Kentucky Registry of Election Finance may expend the funds contained in the established account for election to the judicial division to which they were elected or appointed.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 481; 1996, ch. 377, § 1, effective October 1, 1996; 2003, ch. 66, § 8, effective June 24, 2003; 2005, ch. 124, § 1, effective June 20, 2005.

23A.080. Appeals from District Court — Issuance of writs by Circuit Court.

  1. A direct appeal may be taken from District Court to Circuit Court from any final action of the District Court.
  2. The Circuit Court may issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause within its appellate jurisdiction.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 482, effective January 2, 1978.

NOTES TO DECISIONS

1.In General.

Appeals from inferior courts to Circuit Courts are only such as are expressly allowed by statute. (Decided under prior law)Renshaw v. Cook, 129 Ky. 347 , 111 S.W. 377, 33 Ky. L. Rptr. 860 , 33 Ky. L. Rptr. 895 , 1908 Ky. LEXIS 165 (Ky. Ct. App. 1908); Grayson v. Grayson, 299 Ky. 232 , 185 S.W.2d 251, 1945 Ky. LEXIS 405 ( Ky. 1945 ).

Former section was the general law on the subject of appeals from inferior courts in certain cases, but it did not control where there was a special law governing the particular kind of appeal to be prosecuted. (Decided under prior law) Hart v. Commonwealth, 207 Ky. 343 , 269 S.W. 300, 1924 Ky. LEXIS 9 ( Ky. 1924 ).

The Legislature did not intend anything significant by the word “Action” instead of “judgment” or its equivalent. The emphasis is on the word “final”; so the legislature did not authorize interlocutory orders to be reviewable by direct appeal. Tipton v. Commonwealth, 770 S.W.2d 239, 1989 Ky. App. LEXIS 38 (Ky. Ct. App. 1989), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ), abrogated in part, Commonwealth v. Lamberson, 2007 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Nov. 9, 2007).

The statute makes no provision for interlocutory appeals. Commonwealth v. Williams, 995 S.W.2d 400, 1999 Ky. App. LEXIS 64 (Ky. Ct. App. 1999).

As a Circuit Court had no jurisdiction to take an interlocutory appeal from the District Court, and the Commonwealth would suffer irreparable harm if the District Court’s order suppressing the results of a breathalyzer test was enforced, the mandamus was the proper means for the Circuit Court to redress the District Court judge’s error. Billingsley v. Commonwealth, 2004 Ky. App. LEXIS 162 (Ky. Ct. App. June 4, 2004, sub. op., 2004 Ky. App. Unpub. LEXIS 929 (Ky. Ct. App. June 4, 2004).

The circuit court’s opinion was reversed and the district court’s judgment of conviction and sentence of defendant for second-offense driving under the influence was reinstated because the circuit court erred under KRS 23A.080 by substituting its evaluation of the evidence for that of the district court. Commonwealth v. Spalding, 2006 Ky. App. LEXIS 149 (Ky. Ct. App. May 19, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 1033 (Ky. Ct. App. May 19, 2006).

2.Appealable Orders.

Review of District Court rulings is available through an original proceeding for relief in the nature of mandamus or prohibition in the appellate court. Tipton v. Commonwealth, 770 S.W.2d 239, 1989 Ky. App. LEXIS 38 (Ky. Ct. App. 1989), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ), abrogated in part, Commonwealth v. Lamberson, 2007 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Nov. 9, 2007).

Unquestionably, KRS 22A.020 provides for interlocutory appeals but only from the Circuit Court, not to the Circuit Court from the District Court. The proper procedure for appeals from a District Court is governed by this section. Tipton v. Commonwealth, 770 S.W.2d 239, 1989 Ky. App. LEXIS 38 (Ky. Ct. App. 1989), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ), abrogated in part, Commonwealth v. Lamberson, 2007 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Nov. 9, 2007).

Appeal may be taken to the Circuit Court and then to Court of Appeals from a judgment establishing a highway, notwithstanding repeal of law expressly authorizing such appeals. (Decided under prior law)Burton v. Bryant, 199 Ky. 447 , 251 S.W. 192, 1923 Ky. LEXIS 848 ( Ky. 1923 ).

In habeas corpus proceeding for release from county jail on ground that judgment was void because trial commissioner had no legal authority or power and defendant was convicted of five charges but tried on only one, defendant instead of appealing denial of writ of habeas corpus to Court of Appeals should have exhausted his remedy of appeal to the Circuit Court where the case would have been tried de novo and question of lack of judicial authority in presiding judge and trial on multiple charges would have been eliminated. (Decided under prior law) Brown v. Hoblitzell, 307 S.W.2d 739, 1956 Ky. LEXIS 2 ( Ky. 1956 ).

Where a testator’s will left all of his property to his wife to use, sell, or transfer during her life and at her death any remaining property was to go to his children in equal shares and named his wife as executor and she qualified, administered the estate, and filed her final report, which was approved, the executors of the wife’s estate could not enjoin the enforcement of an order appointing administrators de bonis non of the testator’s estate after his wife’s death, because the wife’s administrators had no interest in the testator’s estate and, if they had, the proper method of opposing the appointment was by appeal to the circuit court. (Decided under prior law)Williams v. Ratcliffe, 402 S.W.2d 432, 1966 Ky. LEXIS 365 ( Ky. 1966 ).

Appeal taken by the Commonwealth was authorized by this section, as there was no question that the district court's order of dismissal was final. Williams v. Commonwealth, 2015 Ky. App. LEXIS 29 (Ky. Ct. App. Feb. 27, 2015, sub. op., 2015 Ky. App. Unpub. LEXIS 863 (Ky. Ct. App. Feb. 27, 2015).

3.Writs of Prohibition.

In aid of its appellate jurisdiction, as found in subsection (2) of this section, the Circuit Court inherently has the power to issue writs of prohibition. Tipton v. Commonwealth, 770 S.W.2d 239, 1989 Ky. App. LEXIS 38 (Ky. Ct. App. 1989), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ), abrogated in part, Commonwealth v. Lamberson, 2007 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Nov. 9, 2007).

Circuit court had authority to issue a writ of prohibition to a district court judge who had issued an order precluding all county attorneys from objecting to questions made to defense witnesses during a preliminary hearing because the Kentucky Supreme Court was not the proper forum and access of such matters to the circuit court provided the parties with rapid and easy access to address claims of immediate and irreparable harm. Delahanty v. Commonwealth ex rel. Maze, 295 S.W.3d 136, 2009 Ky. App. LEXIS 124 (Ky. Ct. App. 2009).

Commonwealth did not have an adequate remedy by appeal because the order did not dispose of the ultimate issue, i.e., whether defendant was guilty of DUI, nor did it include finality language. Peters v. Commonwealth, 2010 Ky. App. LEXIS 2 (Ky. Ct. App. Jan. 8, 2010), rev'd, 353 S.W.3d 592, 2011 Ky. LEXIS 140 ( Ky. 2011 ).

Even though the Commonwealth showed that there was an inadequate remedy by appeal and that it would have suffered great and irreparable injury if a trial court erred by suppressing a juvenile’s statement, a writ of prohibition was not appropriate for the State in a sodomy case because the 13-year-old juvenile’s statement given to police at a school was properly suppressed as involuntary in nature; although a 32-minute interrogation did not seem excessive, the repetitive questioning amounted to coercion by importunity. Even though Miranda rights were read, the juvenile was ordered by school officials into a room, he faced authority figures with considerable power who feigned superior knowledge, and they repeatedly demanded answers. Commonwealth v. Bell, 365 S.W.3d 216, 2012 Ky. App. LEXIS 55 (Ky. Ct. App. 2012).

Circuit court properly denied the a writ of prohibition seeking to prohibit the district court from suppressing the results of defendant’s breathalyzer test in the DUI case under KRS 189A.010(1)(b) because, although the Commonwealth had no adequate remedy by appeal and would suffer great and irreparable injury, the evidence showed that defendant did not intend to operate a motor vehicle while intoxicated but, rather, that he had returned to his vehicle after an evening of merry-making, entered his vehicle, and started it to warm himself while he sobered. Commonwealth v. Armstrong, 2013 Ky. App. LEXIS 40 (Ky. Ct. App. Feb. 22, 2013), review denied, ordered not published, 2013 Ky. LEXIS 694 (Ky. Dec. 11, 2013).

4.Writs of Mandamus.

Because the district court’s denial of the Commonwealth’s motion to transfer appellant juvenile’s robbery case to the circuit court did not dispose of the ultimate issue in the case concerning appellant’s guilt, there was no finality within the meaning of RCr P. 54.02(1); therefore, the Commonwealth’s only remedy was to petition for a writ of mandamus. The circuit court did not err by granting a petition for writ of mandamus under KRS 23A.080(2) directing the district court to transfer appellant’s robbery case to the circuit court, because the conditions of KRS 635.020(4) were satisfied; appellant was older than 14 years of age and a participant in a crime in which a gun was used. K.N. v. Commonwealth, 375 S.W.3d 816, 2012 Ky. App. LEXIS 89 (Ky. Ct. App. 2012).

Circuit court properly granted the Commonwealth's petition for a writ of mandamus because the Commonwealth did not have an adequate remedy by appeal; the district court's denial of the motion to transfer defendant juvenile to circuit court was an interlocutory order because further proceedings were necessary in district court to dispose of all the issues in the case. D.M.K. v. Calvert, 2017 Ky. App. LEXIS 429 (Ky. Ct. App. Aug. 11, 2017), review denied, ordered not published, 2018 Ky. LEXIS 59 (Ky. Feb. 7, 2018).

5.Appeal Bond.

Where the appellant filed an appeal in the circuit court from a ruling appointing another party as administrator of an estate, but the appellant did not file a bond on appeal, the appeal was dismissed for failure to file the bond. (Decided under prior law)Stathis v. Farmers Bank & Capital Trust Co., 444 S.W.2d 112, 1969 Ky. LEXIS 196 ( Ky. 1969 ).

6.Bastardy Proceedings.

Bastardy proceeding is tried de novo on appeal to Circuit Court. (Decided under prior law)West v. Shepherd's Committee, 127 Ky. 323 , 105 S.W. 419, 32 Ky. L. Rptr. 205 , 1907 Ky. LEXIS 132 ( Ky. 1907 ).

7.County Attorney.

The authority of the county attorney is implied to prosecute an appeal in all cases where an appeal is allowed by law. (Decided under prior law)Breckinridge County v. Rhodes, 127 Ky. 444 , 105 S.W. 903, 32 Ky. L. Rptr. 352 , 1907 Ky. LEXIS 147 ( Ky. 1907 ).

8.Guardians.

Where guardian appealing under former section failed to execute a bond, his appeal would be dismissed. (Decided under prior law)In re Huggins, 102 S.W. 849, 31 Ky. L. Rptr. 475 (1907).

Where a case is appealed to the Circuit Court on a question of appointment of a guardian, it is proper for the Circuit Court to try the case de novo. (Decided under prior law)Wright v. Boswell's Guardian, 103 S.W. 314, 31 Ky. L. Rptr. 700 (1907).

Tort-feasor, seeking to settle claim for personal injury to minor, held not entitled to appeal from order removing guardian of minor. (Decided under prior law)Stuart v. Richardson, 407 S.W.2d 716, 1966 Ky. LEXIS 185 ( Ky. 1966 ).

Cited:

Singleton v. Commonwealth, 740 S.W.2d 159, 1986 Ky. App. LEXIS 1484 (Ky. Ct. App. 1986); Woodward v. Commonwealth, 949 S.W.2d 599, 1997 Ky. LEXIS 75 ( Ky. 1997 ); K.R. v. Commonwealth, 360 S.W.3d 179, 2012 Ky. LEXIS 4 ( Ky. 2012 ); Commonwealth v. Wheeler, 558 S.W.3d 475, 2018 Ky. App. LEXIS 95 (Ky. Ct. App. 2018).

Opinions of Attorney General.

A direct appeal may be taken from District Court to Circuit Court from any final action of the District Court. OAG 78-190 .

Jurisdiction to order the return to defendant of personal property seized for forfeiture does not vest in any court until there has been a conviction. Until that time, property is not subject to replevin, but is deemed to be in the custody of the appropriate law enforcement agency. The Commonwealth may hold property which may be subject to forfeiture under the penal code until the underlying criminal charges have been resolved, and upon conviction subject the property to forfeiture. A district court order directing that personal property seized incident to an arrest or by execution of a search warrant be returned to the defendant is not a final action, so a direct appeal would not be available. Rather, review, if any, would be available through an original proceeding for relief in the nature of mandamus or prohibition in the Circuit Court pursuant to the authority of SCR 1.040(6), CR 81 and subsection (2) of this section. OAG 91-67 .

Research References and Practice Aids

Cross-References.

Appeals in particular cases:

Apportionment of taxes on real property when one owner does not pay taxes due, KRS 134.421 .

Drainage district, establishment of, KRS 268.020 .

Eminent domain, KRS 416.540 to 416.670 .

Ferry rights and rates, KRS 280.290 .

License to place of entertainment, KRS 231.090 .

Restoration of persons to sound mind, KRS 202A.141 .

Roads, order of fiscal court establishing, KRS 178.115 .

School districts, division of, KRS 160.210 .

Sewer construction district in county having metropolitan sewer district, KRS 76.305 .

Voluntary assignments, KRS 379.160 .

Water district, establishment, alteration, assessments, KRS 74.010 , 74.110 , 74.150 , 74.160 .

Wills, admission or rejection, KRS 394.240 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Setting Trial (AOC 030) Practice Context for Bonds, Form 4.07.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Appeals from Kentucky District Courts to Circuit Court, § 100.00.

23A.090. Security services provided by sheriff — Compensation.

  1. The sheriff of the county in which the Circuit Court is sitting shall provide such deputies, certified court security officers, and ordinary equipment as the Chief Circuit Judge shall deem necessary to provide security services to the court and its facilities.
  2. The sheriff shall be compensated for these duties at rates to be determined by law.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 483, effective January 2, 1978; 2007, ch. 54, § 9, effective June 26, 2007.

Opinions of Attorney General.

The fees earned by deputies providing security services for the Circuit and District Courts are really fees of the sheriff’s office, and must go into the general official receipts of the sheriff; the sheriff may be given proper credit against his excess fees, where he takes such fees earned by the deputies and applies them on their salaries, but such fees earned by the deputies must first be turned into the regular sheriff’s account. OAG 80-259 .

23A.100. Jurisdiction of family court.

  1. As a division of Circuit Court with general jurisdiction pursuant to Section 112(6) of the Constitution of Kentucky, a family court division of Circuit Court shall retain jurisdiction in the following cases:
    1. Dissolution of marriage;
    2. Child custody;
    3. Visitation;
    4. Maintenance and support;
    5. Equitable distribution of property in dissolution cases;
    6. Adoption; and
    7. Termination of parental rights.
  2. In addition to general jurisdiction of Circuit Court, a family court division of Circuit Court shall have the following additional jurisdiction:
    1. Domestic violence and abuse proceedings under KRS Chapter 403 subsequent to the issuance of an emergency protective order in accord with local protocols under KRS 403.725 ;
    2. Proceedings under the Uniform Act on Paternity, KRS Chapter 406, and the Uniform Interstate Family Support Act, KRS 407.5101 to 407.5902 ;
    3. Dependency, neglect, and abuse proceedings under KRS Chapter 620; and
    4. Juvenile status offenses under KRS Chapter 630, except where proceedings under KRS Chapter 635 or 640 are pending.
  3. Family court divisions of Circuit Court shall be the primary forum for cases in this section, except that nothing in this section shall be construed to limit the concurrent jurisdiction of District Court.

HISTORY: Repealed, reenact. and amend., Acts 2003, ch. 66, § 1, effective June 24, 2003; 2015 ch. 102, § 38, effective January 1, 2016.

NOTES TO DECISIONS

1.In General.

Former husband’s breach of oral contract complaint was properly dismissed by Circuit Court; the complaint was an attempt to collaterally attack a property settlement from a dissolution action over which the family division had exclusive jurisdiction under KRS 23A.100 . Bush v. Combest, 2004 Ky. App. LEXIS 293 (Ky. Ct. App. Oct. 8, 2004).

Trial court erred in treating a father’s exceptions to a commissioner’s child custody recommendations as a CR 59.05 motion and by transferring the case to a Family Court because the recommendation was not a final judgment; rather, the trial court should have simply reviewed the exceptions, conducted a hearing, and entered a final judgment adjudicating the custody issue. The Family Court’s jurisdiction over domestic issues was not intended to be exclusive. Pursley v. Pursley, 242 S.W.3d 346, 2007 Ky. App. LEXIS 457 (Ky. Ct. App. 2007).

While KRS 23A.100(2)(b) conferred general jurisdiction of the trial on a Family Court division for paternity proceedings, the Kentucky paternity statutes did not apply to grant subject matter jurisdiction to Kentucky courts to determine a paternity claim where there was no evidence or allegation that the marital relationship ceased 10 months before the child’s birth. Pursuant to KRS 406.011 a child born during lawful wedlock, or within 10 months thereafter, was presumed to be the husband and wife’s child. J.N.R. v. O'Reilly, 264 S.W.3d 587, 2008 Ky. LEXIS 115 ( Ky. 2008 ), overruled in part, J.A.S. v. Bushelman, 342 S.W.3d 850, 2011 Ky. LEXIS 76 ( Ky. 2011 ).

Family court erred in declining to make findings that a child satisfied the requirements of the Immigration and Nationality Act that could enable her to acquire special immigrant status because the fact-finding process fell squarely within its jurisdiction to provide an adequate remedy for the child, who had been adjudged to be dependent and whose substantial rights were affected by such findings or lack thereof. N.B.D. v. Cabinet for Health & Family Servs., 2018 Ky. App. LEXIS 248 (Ky. Ct. App. Oct. 5, 2018), op. withdrawn, sub. op., 2018 Ky. App. LEXIS 262 (Ky. Ct. App. Nov. 2, 2018).

In keeping with its independence from the federal immigration process, the family court is fully authorized as the finder of fact to conclude under Kentucky law that a petitioner has failed to present evidence to support the special immigrant factors or that the evidence presented was not credible. N.B.D. v. Cabinet for Health & Family Servs., 2018 Ky. App. LEXIS 248 (Ky. Ct. App. Oct. 5, 2018), op. withdrawn, sub. op., 2018 Ky. App. LEXIS 262 (Ky. Ct. App. Nov. 2, 2018).

Court of Appeals erred in reversing a family court decision declining to conduct a Special Immigrant Juvenile (SIJ) hearing at the disposition phase of a dependency, neglect, and abuse case regarding an unaccompanied Guatemalan minor because, while the minor was a dependent child and entitled to the protection and care of the Commonwealth of Kentucky, the courts of Kentucky were not required to make additional findings related to SIJ classification unless they first determine that the evidence to be gleaned from such a supplemental hearing was relevant to the child’s best interests, and there were also grave concerns about the use of the juvenile process in the case to circumvent federal immigration law. Commonwealth v. N.B.D., 577 S.W.3d 73, 2019 Ky. LEXIS 209 ( Ky. 2019 ), cert. denied, 141 S. Ct. 157, 207 L. Ed. 2d 1096, 2020 U.S. LEXIS 3427 (U.S. 2020).

2.Declaratory Judgments.

Where the estate of a decedent filed a complaint for determination of paternity of a child allegedly fathered by the decedent, although the Family Court did not have jurisdiction over a paternity action under KRS 406.021 or KRS 406.180 , as the estate was not the proper party to file such a suit, and neither the child nor mother ever lived in the United States, the court had jurisdiction under KRS 418.040 to enter a declaratory judgment as to the child’s paternity. Uninsured Employers' Fund v. Bradley, 244 S.W.3d 741, 2007 Ky. App. LEXIS 403 (Ky. Ct. App. 2007).

3.Domestic Violence Orders.

Contrary to a husband’s arguments, the fact that a District Court declined to issue an emergency protective order did not leave a Family Court without jurisdiction to issue a domestic violence order subsequent to a hearing on a wife’s petition; under KRS 23A.100(3), the Family Court was the primary forum for cases involving domestic violence and abuse although the District Court had concurrent jurisdiction to enter protective orders under KRS 403.725 . Gomez v. Gomez, 254 S.W.3d 838, 2008 Ky. App. LEXIS 145 (Ky. Ct. App. 2008).

Family Courts have concurrent jurisdiction with District Courts regarding the issuance of domestic violence orders. Gomez v. Gomez, 254 S.W.3d 838, 2008 Ky. App. LEXIS 145 (Ky. Ct. App. 2008).

Court of appeals erred in holding that a family court lost jurisdiction to issue a domestic violence order on the ground that it failed to conduct a hearing within 14 days after the issuance of an emergency protective order because the family court’s failure was, at most, the erroneous exercise of subject matter jurisdiction; it was not a lack of subject matter jurisdiction under KRS 23A.100(2). Daugherty v. Telek, 366 S.W.3d 463, 2012 Ky. LEXIS 73 ( Ky. 2012 ).

When a family court judge recused in a divorce action, she simultaneously and automatically disqualified herself from a domestic violence order proceeding as the very purpose for the creation of the family courts was to consolidate litigation and controversies related to a family into one court. Boone v. Boone, 501 S.W.3d 434, 2016 Ky. App. LEXIS 178 (Ky. Ct. App. 2016).

4.Paternity Actions.

In accordance with KRS 23A.100(2)(b), the family court had jurisdiction over an action to establish paternity to a child conceived while a married couple was legally separated and pursuing a divorce; given the unusual facts of this case and the inherent rights of biological parents, the grant of joint custody to appellant former husband could not prevent appellee alleged biological father from pursuing his paternity action. The family court had jurisdiction to make the proper balancing of the parties’ rights and determine the best interests of the child. Smith v. Garber, 2010 Ky. LEXIS 142 (Ky. June 17, 2010, sub. op., 2010 Ky. Unpub. LEXIS 115 (Ky. June 17, 2010), modified, 2011 Ky. LEXIS 105 (Ky. June 16, 2011).

Mother was estopped from arguing that KRS 406.180 limited jurisdiction to children born “out of wedlock.” The mother and her husband judicially admitted that another man was the father of a child born during the marriage, and diagnostic testing confirmed the other man’s paternity; the mother’s judicial admissions were sufficient to rebut the presumption that her husband was the father of the child. S.B. v. M.C., 352 S.W.3d 345, 2011 Ky. App. LEXIS 151 (Ky. Ct. App. 2011).

Research References and Practice Aids

Kentucky Bench & Bar.

Family Court: Understanding Family Court in Kentucky, Vol. 68, No.6, Nov. 2004, Ky. Bench & Bar 7.

Family Court: Proceedings for Dependency, Neglect and Abuse: The Role of the Family Court Judge and the Guardian ad Litem, Vol. 68, No. 6, Nov. 2004, Ky. Bench & Bar 21.

Kentucky Law Journal.

May, Social Reform for Kentucky’s Judicial System: The Creation of Unified Family Courts, 92 Ky. L.J. 571 (2003).

Northern Kentucky Law Review.

Schechter, An Introduction to Re-envisioning the Role of the Juvenile Court in the 21st Century, 34 N. Ky. L. Rev. 181 (2007).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Family Court, § 5.00.

23A.110. Additional jurisdiction of family court to be construed to promote underlying purposes.

The additional jurisdiction of a family court division of Circuit Court shall be liberally construed and applied to promote its underlying purposes, which are as follows:

  1. To strengthen and preserve the integrity of the family and safeguard marital and familial relationships;
  2. To protect children and adult family members from domestic violence and abuse;
  3. To promote the amicable settlement of disputes that have arisen between family members;
  4. To assure an adequate remedy for children adjudged to be dependent, abused, or neglected, and for those children adjudicated as status offenders;
  5. To mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage;
  6. To make adequate provision for the care, custody, and support of minor children of divorce and for those children who have been born out of wedlock; and
  7. To provide a level of proceedings, when necessary, that is more appropriate to a family court division of Circuit Court.

History. Repealed, reenact. and amend., Acts 2003, ch. 66, § 2, effective June 24, 2003.

NOTES TO DECISIONS

1.Counseling.

Family court’s termination of reconciliation counseling between a mother and daughter was not an abuse of discretion under KRS 23A.110(1) because the evidence supported a conclusion that reconciliation counseling would be unsuccessful and possibly counterproductive. N.B. v. C.H., 351 S.W.3d 214, 2011 Ky. App. LEXIS 250 (Ky. Ct. App. 2011).

2.Special Immigrant Status.

Family court erred in declining to determine whether a minor who was born in Guatemala and currently resided in Kentucky satisfied the criteria for a special immigrant (SIJ) status because the court was most emphatically not being directed to address immigration issues or the minor’s immigration status, the SIJ fact-finding process fell squarely within the court’s jurisdiction to provide an adequate remedy for the minor, who had been adjudged to be dependent and whose substantial rights were affected by such findings or lack thereof, and the minor would be unable to proceed with an application for SIJ status and might possibly face deportation without such remedy. N.B.D. v. Cabinet for Health & Family Servs., 2018 Ky. App. LEXIS 262 (Ky. Ct. App. Nov. 2, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 963 (Ky. Ct. App. Nov. 2, 2018).

Cited in:

Gomez v. Gomez, 254 S.W.3d 838, 2008 Ky. App. LEXIS 145 (Ky. Ct. App. 2008).

Research References and Practice Aids

Kentucky Bench & Bar.

Family Court: Mediation — The Power Tool of Choice in Family Courts, Vol. 68, No. 6, Nov. 2004, Ky. Bench & Bar 26.

23A.120. Position of domestic relations commissioner abolished in family court.

In any judicial circuit where a family court is established or has been established, the position of domestic relations commissioner is abolished, and no commissioner shall be appointed to hear or determine any matter within the jurisdiction of the family court.

History. Enact. Acts 2002, ch. 86, § 1, effective January 1, 2003.

Fees and Costs

23A.200. Fees and costs for civil cases.

  1. The Supreme Court shall by rule set the filing fees and miscellaneous costs for civil cases filed in the Circuit Court.
  2. The following fee shall be paid directly to the sheriff or other officer serving the process by the party requesting the service, at the time of the request as follows:

Service of process (per process) . . . . . $20.00

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 56, effective January 1, 1978; 1978, ch. 200, § 4, effective June 17, 1978; 1982, ch. 141, § 30, effective July 1, 1982; 1982, ch. 159, § 1, effective July 15, 1982; 1982, ch. 266, § 1, effective July 15, 1982; 1982, ch. 445, § 34, effective July 1, 1982; 1994, ch. 134, § 3, effective July 1, 1994; 1996, ch. 248, § 6, effective July 15, 1996.

Compiler’s Notes.

This section was amended by § 30 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396. In addition, Acts 1982, ch. 445, § 44, specifically repealed the amendment to this section by Acts 1980, ch. 396, § 30.

Legislative Research Commission Notes.

This section was amended by four 1982 Acts which do not appear to be in conflict and have been compiled together.

This section was amended in 1982 Acts Chapter 445, which contains the following language in Section 45 of that Act: “This Act shall become effective on July 1, 1982.” The Ky. Constitution, in Section 55, requires that a reason be set forth for the emergency. However, no reason is set forth in this Act. The effective date for 1982 Acts with no emergency provision is July 15, 1982.

Although a reference to mental health proceedings under KRS Ch. 387 was added in (1) of this section by 1982 Acts ch. 445, § 34, the provisions of KRS Ch. 387 relating to such proceedings were repealed by 1982 Acts ch. 141, § 146.

Opinions of Attorney General.

In view of the fact that under KRS 453.010 the Circuit Court is not required to mandate the paying of costs by the Commonwealth, the Department of Labor should not pay the advance filing fee when appealing Workmen’s (now Workers’) Compensation Board opinions. OAG 77-775 .

A filing fee of $70.00 in civil cases is payable in advance, but the $10.00 fee for issuing orders of attachment is not payable until termination of the suit. OAG 78-136 .

The clerk’s fee for issuance of a garnishment need not be paid in advance. OAG 78-136 .

The Commonwealth, except for the provisions of KRS 416.620 , pertaining to proceedings for eminent domain, is exempt from paying costs, although it may, pursuant to KRS 453.010 , pay costs when such costs are approved and allowed by the judge of the court in which the case was filed. OAG 78-343 .

To apply the provisions of this section to suits filed prior to January 2, 1978, would make the statute retroactive in its application; since there is no provision or indication in the statute or in the bill enacting the statute that such an objective was intended and since KRS 446.080(3) states that no statute shall be construed to be retroactive, unless expressly so declared the filing fee requirement is applicable only to suits filed on and after January 2, 1978. OAG 78-517 .

If the sheriff must make a return on the item or document, he is entitled to a $3.00 fee for service, regardless of whether the process is served alone or in a group with other process, but if no return is required on the document (i.e., a pleading) he may not charge the $3.00 fee. OAG 79-510 .

The sheriff must compute his mileage per service of process and charge the responsible party at the applicable rate per mile traveled. OAG 79-510 .

The word “process” as used in this section and KRS 24A.170 does not refer to every legal document, but is a technical term which refers to documents, such as summonses, by which the court may command a person to appear in an action or before the court, or the means, such as a temporary restraining order, whereby the court compels compliance with its demands. OAG 79-510 .

The advance fees required by this section and KRS 24A.170 would have to be paid by an urban county government in civil actions to which it was a party. OAG 83-186 .

23A.205. Court costs for criminal cases in Circuit Court — Payment required — Exceptions.

  1. Court costs for a criminal case in the Circuit Court shall be one hundred dollars ($100).
  2. The taxation of court costs against a defendant, upon conviction in a case, shall be mandatory and shall not be subject to probation, suspension, proration, deduction, or other form of nonimposition in the terms of a plea bargain or otherwise, unless the court finds that the defendant is a poor person as defined by KRS 453.190(2) and that he or she is unable to pay court costs and will be unable to pay the court costs in the foreseeable future.
  3. If the court finds that the defendant does not meet the standard articulated in subsection (2) of this section and that the defendant is nonetheless unable to pay the full amount of the court costs, fees, or fines at the time of sentencing, then the court may establish an installment payment plan in accordance with KRS 534.020 .

HISTORY: Enact. Acts 1976 (Ex. Sess.), ch. 22, § 58, effective January 2, 1978; 1978, ch. 200, § 5, effective June 17, 1978; 1984, ch. 321, § 2, effective July 13, 1984; 1998, ch. 606, § 43, effective July 15, 1998; 2000, ch. 328, § 1, effective July 14, 2000; 2002, ch. 183, § 1, effective August 1, 2002; 2017 ch. 158, § 2, effective June 29, 2017.

NOTES TO DECISIONS

Analysis

1.Consistent With KRS 31.110.

This section and KRS 31.110 are not inconsistent. Edmonson v. Commonwealth, 725 S.W.2d 595, 1987 Ky. LEXIS 194 ( Ky. 1987 ).

Statute allowing for costs to be assessed after sentencing, KRS 23A.205 , allowed for court costs to be waived for “poor persons,” as defined in KRS 453.190(2), but did not give defendant the blanket immunity from costs that defendant suggested was required by KRS 31.110 . Rather, the trial court could consider under KRS 23A.205 both a defendant’s ability to pay at present and in the foreseeable future, whereas statutes such as KRS 31.100 regarding “needy persons” focused on a defendant’s inability to provide payment for representation by an attorney at all and KRS 31.211 provided solely for a “present tense” determination, which did not apply to defendant because defendant had been released from custody and could work to pay for the modest court costs assessed against defendant. Maynes v. Commonwealth, 361 S.W.3d 922, 2012 Ky. LEXIS 20 ( Ky. 2012 ).

2.Court Costs Properly Assessed.

Trial court's imposition of court costs and the arrest fee was affirmed where the record did not reflect an assessment of appellant's financial status, other than that he was appointed a public defender and permitted to proceed on appeal in forma pauperis, and simply because appellant was represented by a public defender did not mean he was necessarily exempt from court costs. Spicer v. Commonwealth, 442 S.W.3d 26, 2014 Ky. LEXIS 435 ( Ky. 2014 ).

Assessment of court costs was facially valid and did not constitute error, as the court expressly imposed court costs and made provisions for deferred payment, without finding that defendant was a “poor person.” Nunn v. Commonwealth, 461 S.W.3d 741, 2015 Ky. LEXIS 88 ( Ky. 2015 ).

In a drug case, there was no error in requiring defendant to pay court costs because, even though defendant stated he did not believe he had money in a commissary account, the trial court did not find him to be a poor person. The trial court found that defendant would have been able to earn money to pay the nominal court costs after his release from prison. Hunt v. Commonwealth, 2016 Ky. App. LEXIS 65 (Ky. Ct. App. Apr. 29, 2016).

Trial court did not err in imposing court costs where it made no factual determination that defendant was a poor person under Ky. Rev. Stat. Ann. § 23A.205 . Howard v. Commonwealth, 496 S.W.3d 471, 2016 Ky. LEXIS 333 ( Ky. 2016 ).

Trial court did not err in imposing court costs on appellant as the assessment of court costs was mandatory absent a specific finding that he was a poor person under Ky. Rev. Stat. Ann. § 23A.205 , and there had been no adjudication of his poverty status. Constant v. Commonwealth, 603 S.W.3d 654, 2020 Ky. App. LEXIS 47 (Ky. Ct. App. 2020).

Imposition of costs as mandated by Ky. Rev. Stat. Ann. § 23A.205(2) was affirmed where the court had engaged defendant directly and advised him that counsel could ask that costs be waived, defendant indicated that he had $200.00 to pay into court that day, and as a result, the court imposed a minimal fine of $130.00 and gave defendant 10 days to pay it. Regardless of defendant’s status as a poor person, the circuit court concluded that defendant could pay court costs either at the time of sentencing or in the foreseeable future. Louisville R. Co. v. Masterson, 96 S.W. 534, 29 Ky. L. Rptr. 829 , 1906 Ky. LEXIS 347 (Ky. Ct. App. 1906).

Appellate court properly affirmed the circuit court’s order imposing court costs against defendant in spite of his indigency because the record did not reflect the trial court adjudged him a “poor person,” either explicitly or implicitly, defendant was not deemed to be a “poor person” who was exempt from court costs, simply because he was determined to be a “needy person” eligible for the services of a public defender, he did not raise the issue of his poverty status before the trial court, and the decision regarding court costs was not inconsistent with the facts in the record. Chadwell v. Commonwealth, 2021 Ky. LEXIS 306 (Ky. Aug. 26, 2021).

3.Costs Improperly Assessed.

There was no method by which a trial court could indirectly impose fines under KRS 534.040(4) and court costs under KRS 23A.205(2) against a defendant by reducing his pretrial jail time credit; therefore, language in the judgment that could be taken to indicate that such credit would be reduced was ordered stricken. Smith v. Commonwealth, 366 S.W.3d 399, 2012 Ky. LEXIS 27 ( Ky. 2012 ).

Court reversed the imposition of court costs and remanded for a finding whether defendant was a poor person, as defined in KRS 453.190(2), was unable to pay court costs, and would be unable to pay the court costs in the foreseeable future. Smith v. Commonwealth, 361 S.W.3d 908, 2012 Ky. LEXIS 29 ( Ky. 2012 ).

Although appellant’s argument concerning costs and a fine was not preserved, costs and fines were imposed as part of a sentence, and thus could not be waived by failure to object. Butler v. Commonwealth, 367 S.W.3d 609, 2012 Ky. App. LEXIS 73 (Ky. Ct. App. 2012).

Because defendant was found to be a “poor person” under KRS 453.190(2), a trial court erred in imposing costs under KRS 23A.205 and assessing a partial public defender fee under KRS 31.211(1). Miller v. Commonwealth, 391 S.W.3d 857, 2013 Ky. LEXIS 10 ( Ky. 2013 ).

Order requiring defendant to pay court costs despite defendant's indigency was not disturbed on appeal because defendant did not inform the trial court of defendant's indigency. Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

4.Court Costs Improperly Assessed.

Decision to impose or waive court costs was to be made by the trial court by or at the time of sentencing; there was no statutory basis for a court to exercise jurisdiction to determine the appropriateness of court costs beyond the end of the proceedings, much less once the sentence has been imposed and served and the defendant has been released from prison. Buster v. Commonwealth, 381 S.W.3d 294, 2012 Ky. LEXIS 162 ( Ky. 2012 ).

Appellant was ordered to pay costs and fees immediately upon release from custody, and he was facing an over seven-year sentence during which he could not work; thus, there was not a reasonable basis to find that appellant would soon be able to pay costs, and that part of the order imposing costs and fees was vacated. Butler v. Commonwealth, 367 S.W.3d 609, 2012 Ky. App. LEXIS 73 (Ky. Ct. App. 2012).

While the trial court provided defendant with a six-month period of time to pay the court costs once he was released from incarceration, there was no indication in the record that the court made any findings regarding whether defendant was “poor” and whether he could presently or in the foreseeable future pay the court costs as required by KRS 23A.205 . McElroy v. Commonwealth, 389 S.W.3d 130, 2012 Ky. App. LEXIS 292 (Ky. Ct. App. 2012).

The trial court's imposition of court costs under this section was unreasonable and constituted palpable error, as defendant had no job, asserts, or income, was facing a three and one-half year prison sentence, had nothing but a phone card while in jail, and was specifically found to be indigent under Ky. Rev. Stat. Ann. § 453.190 shortly after sentencing. Jones v. Commonwealth, 527 S.W.3d 820, 2017 Ky. App. LEXIS 442 (Ky. Ct. App. 2017).

Trial court erred in ordering defendant to pay court costs in installments beginning sixty days after his release, as those necessarily could not be paid within one year of the date of sentencing. Applegate v. Commonwealth, 577 S.W.3d 83, 2018 Ky. App. LEXIS 239 (Ky. Ct. App. 2018).

5.Matter Remanded.

Imposition of court costs was reversed and the case was remanded for a determination of whether defendant was a poor person as defined by KRS 453.190(2), unable to pay court costs now, and would be unable to pay court costs in the foreseeable future as court costs could be imposed on an indigent defendant, unless the court found that the defendant was a poor person as defined by KRS 453.190(2) and that he or she was unable to pay court costs and would be unable to pay the court costs in the foreseeable future under KRS 23A.205 . Reynolds v. Commonwealth, 393 S.W.3d 607, 2012 Ky. App. LEXIS 237 (Ky. Ct. App. 2012).

Prior to imposing court costs, the trial court issued no finding on whether defendant was a poor person and did not inquire into his ability to pay cost in the future, and such constituted reversible error; the was a question of fact to be determine by the trial court on remand. Boone v. Commonwealth, 2013 Ky. App. LEXIS 152 (Ky. Ct. App. Oct. 18, 2013), review denied, ordered not published, 2014 Ky. LEXIS 407 (Ky. Aug. 13, 2014).

Cited:

Martin v. Commonwealth, — S.W.3d —, 2011 Ky. App. LEXIS 157 (Ky. Ct. App. 2011); Goncalves v. Commonwealth, 404 S.W.3d 180, 2013 Ky. LEXIS 2 ( Ky. 2013 ); Elliott v. Commonwealth, 553 S.W.3d 207, 2018 Ky. LEXIS 2 86 ( Ky. 2018 ).

Opinions of Attorney General.

Former subsection (3)(b) of this section set a fifteen cent per page copying fee for documents generated by or for the Circuit Courts in criminal matters and under this statute, a $1.00 per page reproduction fee appears to be excessive. OAG 91-193 .

23A.206. Additional costs imposed in criminal cases — Funds distributed to local governments and counties — Funds used for police, jails, and transport of prisoners.

  1. For the purposes of this section:
    1. “Local government” means a city, county, charter county, urban-county, or consolidated local government; and
    2. “Police department” means a police department created by a local government which employs one (1) or more officers certified pursuant to KRS 15.380 to 15.404 .
  2. In criminal cases a fee of twenty dollars ($20) shall be added to the costs imposed by KRS 23A.205 that the defendant is required to pay.
  3. The circuit clerk shall pay the funds from fees collected under this section to the Finance and Administration Cabinet pursuant to KRS 23A.215 for distribution as provided in subsection (5) of this section to local governments with police departments or local governments that contract for police services, and to counties with fiscal responsibilities for jails or the transporting of prisoners.
  4. All funds distributed to local governments shall be used for payment of expenses for operation of the local government’s police department or contracted police services. All funds distributed to counties with fiscal responsibilities for jails or the transporting of prisoners shall be used for the payment of costs associated with the housing or transporting of prisoners.
  5. Payments shall be distributed quarterly by the Finance and Administration Cabinet beginning October 1, 2004, as follows:
    1. Thirty percent (30%) of the total shall be distributed equally to all local governments with police departments or that contract for police services;
    2. Fifty percent (50%) of the total shall be distributed to local governments with police departments or local governments that contract for police services on a per capita basis according to the number of certified police officers employed by the police department on July 1 each year or providing services to the local government pursuant to a contract on July 1 of each year. For purposes of this subsection, each local government that contracts for police services shall be considered to employ one (1) police officer for each sixty thousand dollars ($60,000) it expends during each fiscal year for police services under a written contract; and
    3. Twenty percent (20%) of the total shall be distributed equally to counties with fiscal responsibilities for jails or the transporting of prisoners.
  6. On or before August 1 of each year, the Justice and Public Safety Cabinet shall certify to the Finance and Administration Cabinet the number of certified police officers employed by each local government.
  7. On or before August 1 of each year, each local government contracting for police services shall certify to the Finance and Administration Cabinet the amount of money expended for police services under a written contract during the previous fiscal year.
  8. The Finance and Administration Cabinet shall promulgate administrative regulations pursuant to KRS Chapter 13A deemed necessary for the administration of this section.

History. Enact. Acts 2004, ch. 78, § 1, effective April 6, 2004; 2007, ch. 85, § 108, effective June 26, 2007.

23A.2065. Additional fees for criminal cases — Allocation to general fund and telephonic behavioral health jail triage system.

In addition to the twenty dollar ($20) fee created by KRS 23A.206 , in criminal cases a ten dollar ($10) fee shall be added to the costs imposed by KRS 23A.205 that the defendant is required to pay. The first five dollars ($5) of each fee collected under this section shall be placed into the general fund, and the remainder of the fee shall be allocated to the Cabinet for Health and Family Services for the implementation and operation of a telephonic behavioral health jail triage system as provided in KRS 210.365 and 441.048 .

History. Enact. Acts 2004, ch. 137, § 4, effective July 13, 2004; 2005, ch. 99, § 97, effective June 20, 2005; 2008, ch. 158, § 3, effective July 1, 2008.

23A.207. Fees for criminal cases.

In criminal cases, the following fees shall be charged by the circuit clerk and paid to the clerk at the time the corresponding services are requested:

  1. Preparing an attestation  . . . . .  $0.50
  2. Preparing a certification  . . . . .  $5.00
  3. Preparing a copy of a document (per page)  . . . . .  $0.25

History. Enact. Acts 2002, ch. 183, § 2, effective August 1, 2002.

23A.208. Additional fee for sex crime, stalking, or related inchoate offenses.

  1. In addition to fees created by KRS 23A.205 , 23A.206 , and 23A.2065 , an administrative fee of thirty dollars ($30) shall be added to the costs that the defendant is required to pay for the following crimes:
    1. A sex crime, meaning an offense described in:
      1. KRS Chapter 510;
      2. KRS 530.020 ;
      3. KRS 530.064(1)(a);
      4. KRS 531.310 ; and
      5. KRS 531.320 ;
    2. Stalking, meaning conduct prohibited under KRS 508.140 and 508.150 ; and
    3. A criminal attempt, conspiracy, facilitation, or solicitation to commit the crimes set forth in this subsection.
  2. The first one dollar and fifty cents ($1.50) of each fee collected under this section shall be placed into the general fund, and the remainder of the fee shall be allocated by the clerk of the court on a quarterly basis to the address protection program fund established in KRS 14.260 to be used solely to establish, operate, and maintain the confidential address protection program established in KRS 14.260 .
  3. The court may waive all or any portion of the fee required by this section if the court finds that a person subject to the surcharge is indigent or financially unable to pay all or any portion of the surcharge. The court may waive only the portion of the surcharge that the court finds the person is financially unable to pay.

HISTORY: 2015 ch. 101, § 1, effective June 24, 2015.

23A.209. Additional fee for expenses of Kentucky Internet Crimes Against Children Task Force.

In addition to the twenty dollar ($20) fee created by KRS 23A.206 and the ten dollar ($10) fee created by KRS 23A.206 5, a ten dollar ($10) fee shall be added in criminal cases to the costs imposed by KRS 23A.205 . The fee collected under this section shall be allocated to the Department of Kentucky State Police for the training, salaries, and equipment of the Kentucky Internet Crimes Against Children Task Force.

HISTORY: 2015 ch. 122, § 1, effective June 24, 2015.

23A.210. Fees for appeals from District Court or transfer of cases to Circuit Court. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976 (Ex. Sess.), ch. 22, § 57, effective January 2, 1978; 1978, ch. 200, § 6, effective June 17, 1978) was repealed by Acts 1994, ch. 134, § 9, effective July 1, 1994.

23A.215. Disposition of Circuit Court fees and costs.

  1. Except as provided in subsection (2) of this section, all fees and costs collected pursuant to KRS 23A.200(1) shall be deposited in the general fund of the State Treasury.
  2. Fees consisting of reimbursement for incidental direct outlays, including but not limited to postage and legal advertising, may be retained by the clerk and expended for these purposes in accordance with relevant directives of the Administrative Office of the Courts.
  3. Additional costs in Circuit Court civil cases authorized by subsection (2) of KRS 23A.200 shall be paid to the sheriff or other officer serving the process.
  4. Filing fees in civil actions shall be recoverable as costs.
  5. No later than the seventh working day of each month the circuit clerk shall pay the funds collected from each court cost collected under KRS 23A.205 to the court cost distribution fund established in KRS 42.320 and report to the Finance and Administration Cabinet and the Administrative Office of the Courts the amounts deposited into the court cost distribution fund.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 62, effective January 2, 1978; 1978, ch. 200, § 7, effective June 17, 1978; 1984, ch. 321, § 3, effective July 13, 1984; 1994, ch. 134, § 4, effective July 1, 1994; 2002, ch. 183, § 3, effective August 1, 2002.

23A.220. Assessment by the fiscal court of additional fees and costs.

A fiscal court, by ordinance, may assess additional fees and costs for the purpose of paying expenses for courthouses, bonds related to them, and administration expenses of the Circuit Court as follows:

  1. In civil cases, a fee of twenty-five dollars ($25) may be added to filing fees;
  2. In criminal cases, a cost of twenty-five dollars ($25) may be added to the court costs that the defendant is required to pay; and
  3. In civil cases that are appealed from the Circuit Court to the Court of Appeals, a fee of twenty-five dollars ($25) may be added to the filing fees.

History. Enact. Acts 2001, ch. 54, § 2, effective March 15, 2001.

Compiler’s Notes.

Section 5 of Chapter 54 of the Acts of the 2001 Regular Session read:

“The provisions of Section 1 to 4 of this Act shall supersede and prevail over any conflicting provisions of the 2000 Kentucky Acts Chapter 524 (House Joint Resolution 84), the 2000-2002 Judicial Branch Budge Memorandum.”

NOTES TO DECISIONS

1.Appeals.

Because an inmate timely tendered a notice of appeal with the proper filing fees, payment of the court facility fees was not a condition precedent, and failure to tender the court facility fee within the time limits of CR 73.02(1)(a) did not require automatic dismissal of the appeal. Moreover, the trial court could issue a show cause order to ensure the court facility fee was paid. Hill v. Ky. Parole Bd., 250 S.W.3d 314, 2008 Ky. LEXIS 104 ( Ky. 2008 ).

2.Expenditure of Funds.

Argument relating to a fiscal court’s expenditure of funds collected via a court fee tax were rejected because there was no allegation of the improper use of the funds, the fiscal court had the discretion to use the funds for administration expenses and courthouse expenses which were not necessarily limited to the courthouse in Alexandria, Kentucky, and the issue was better left to the required audits of county expenditures. Nolan v. Campbell County Fiscal Court, 2010 Ky. App. LEXIS 217 (Ky. Ct. App. Nov. 24, 2010).

CHAPTER 24 Circuit Courts Having Continuous Session [Repealed]

24.010. Counties of less than 150,000 population constituting separate circuits — Continuous session — Where court held — Where cases tried. [Repealed.]

Compiler’s Notes.

This section (980: amend. Acts 1968, ch. 51; 1976, ch. 62, § 29) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

24.020. Legal notices. [Repealed.]

Compiler’s Notes.

This section (980) was repealed by Acts 1958, ch. 42, § 29.

24.030. Rules. [Repealed.]

Compiler’s Notes.

This section (980) was repealed by Acts 1962, ch. 119, § 6.

24.040. Juries to be drawn and meet in two places — Number of grand juries. [Repealed.]

Compiler’s Notes.

This section (980, 981) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

24.045. Additional judge for Fayette County — Divisions of court — Sessions and business of court. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 168, §§ 1 to 4) was repealed by Acts 1962, ch. 119, § 6.

24.046. Judicial circuits having more than one judge. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 119, § 5; 1966, ch. 247, § 1; 1968, ch. 120, § 1; 1968, ch. 157, § 1; 1972, ch. 177, § 11; 1976, ch. 62, § 30) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

24.047. Two judges in Warren County. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 12, §§ 1, 2) was repealed by Acts 1972, ch. 203, § 55.

24.048. Six judges in Fayette County — Numbered divisions — Election of judges. [Repealed.]

Compiler’s Notes.

This section (Acts 1972, ch. 177, § 12; 1976, ch. 62, § 31) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

24.049. Two judges in Franklin County — Divisions. [Repealed].

Compiler’s Notes.

This section (Acts 1974, ch. 17, § 3(1), (2); 1976, ch. 62, § 32) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

24.050. Two judges in Kenton County. [Repealed.]

Compiler’s Notes.

This section (963-2) was repealed by Acts 1962, ch. 119, § 6.

24.051. Rules and distribution of cases in court with four judges. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 247, §§ 2, 3; 1968, ch. 157, § 2; 1976, ch. 62, § 33) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

24.052. Warren County to have court of continuous session — Terms. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 270, § 9) was repealed by Acts 1966, ch. 255, § 283.

24.055. Additional judge for Campbell County; sessions and business of court. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 73, §§ 1, 2(2), 3) was repealed by Acts 1962, ch. 119, § 6.

24.056. Additional judge for Pike County; divisions of court; sessions and business of court. [Repealed.]

Compiler’s Notes.

This section (1954, ch. 89, §§ 1, 2) was repealed by Acts 1962, ch. 119, § 6.

24.060. Two divisions in court having two judges and continuous session. [Repealed.]

Compiler’s Notes.

This section (1019b-1) was repealed by Acts 1962, ch. 119, § 6.

24.065. Courts having more than one judge, in counties having less than 150,000 population — Jurisdiction — Divisions — Rules. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 119, § 1; 1972, ch. 177, § 13; 1976, ch. 62, § 34) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

24.068. Criminal and civil branches of circuit courts in counties having a population of 150,000 or more, but less than 250,000 — Adoption of rules. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 119, § 1; 1972, ch. 177, § 13; 1976, ch. 62, § 35) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

24.070. Election of judges for two divisions. [Repealed.]

Compiler’s Notes.

This section (1019b-13) was repealed by Acts 1962, ch. 119, § 6.

24.075. Election of judges by numbered divisions. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 119, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

24.080. Which division to try actions. [Repealed.]

Compiler’s Notes.

This section (1019b-2) was repealed by Acts 1962, ch. 119, § 6.

24.090. Assignment of actions to divisions. [Repealed.]

Compiler’s Notes.

This section (1019b-3, 1019b-4) was repealed by Acts 1962, ch. 119, § 6.

24.100. Either division may act provisionally until case assigned. [Repealed.]

Compiler’s Notes.

This sections (1019b-5) was repealed by Acts 1962, ch. 119, § 6.

24.110. Division of pending cases when additional judge added. [Repealed.]

Compiler’s Notes.

This section (1019b-7) was repealed by Acts 1962, ch. 119, § 6.

24.120. Equalization of docket. [Repealed.]

Compiler’s Notes.

This section (1019b-6) was repealed by Acts 1962, ch. 119, § 6.

24.130. Transfer and consolidation of actions. [Repealed.]

Compiler’s Notes.

This section (1019b-8) was repealed by Acts 1952, ch. 84, § 6.

24.140. What judge to preside when court held in two places; assignment of cases. [Repealed.]

Compiler’s Notes.

This section (1019b-10) was repealed by Acts 1962, ch. 119, § 6.

24.150. Other judge may act when one disqualified; special judge. [Repealed.]

Compiler’s Notes.

This section (1019b-14) was repealed by Acts 1962, ch. 119, § 6.

24.160. Rules; general terms; order book. [Repealed.]

Compiler’s Notes.

This section (1019b-11) was repealed by Acts 1962, ch. 119, § 6.

24.170. Number of judges in Jefferson County. [Repealed.]

Compiler’s Notes.

This section (963a-1, 963a-2: amend. Acts 1966, ch. 255, § 27; 1970, ch. 69, § 1; 1972, ch. 177, § 16) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

24.175. Two additional judges for Jefferson County; divisions of court; election of judges; business of court. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 167, §§ 1 to 4, 6) was repealed by Acts 1966, ch. 255, § 283.

24.176. Two further additional judges; divisions for Thirtieth Circuit Court District. [Repealed.]

Compiler’s Notes.

This section (Acts 1960, ch. 72, § 1) was repealed by Acts 1966, ch. 255, § 283.

24.177. Two more judges; divisions for Jefferson County. [Repealed.]

Compiler’s Notes.

This section (1964, ch. 63, §§ 1 to 4) was repealed by Acts 1966, ch. 255, § 283.

24.180. Jefferson County Circuit Court — Continuous session — Branches and divisions. [Repealed.]

Compiler’s Notes.

This section (1020-4, 1020-5: amend. Acts 1966, ch. 255, § 28 1970, ch. 69, § 2; 1972, ch. 177, § 17) was repealed by Acts 1976, ch. 14, § 491.

24.190. Election of judges — Separate votes. [Repealed.]

Compiler’s Notes.

This section (1020-1: amend. Acts 1966, ch. 255, § 29) was repealed by Acts 1976, ch. 14, § 491.

24.200. Each judge to preside in division — Vacancies. [Repealed.]

Compiler’s Notes.

This section (1020-2, 1020-7: amend. Acts 1966, ch. 255, § 30) was repealed by Acts 1976, ch. 14, § 491.

24.210. Court to make rules governing assignment of civil actions — Criminal prosecutions — Proceedings on bail bonds and recognizances. [Repealed]

Compiler’s Notes.

This section (1020-6: amend. Acts 1952, ch. 84, § 46; 1966, ch. 255, § 31) was repealed by Acts 1976, ch. 14, § 491.

24.220. Transfer of cases involving common fund. [Repealed.]

Compiler’s Notes.

This section (1020-26) was repealed by Acts 1952, ch. 84, § 6.

24.230. Proceeding valid in any branch. [Repealed.]

Compiler’s Notes.

This section (1020-9: amend. Acts 1966, ch. 255, § 32) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

24.240. Judge of one division may preside over another. [Repealed.]

Compiler’s Notes.

This section (1020-10: amend. Acts 1966, ch. 255, § 33) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

24.250. Rules — General term — Order book. [Repealed.]

Compiler’s Notes.

This section (1020-20: amend. Acts 1966, ch. 255, § 34) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

24.260. Action on bond of court officers. [Repealed.]

Compiler’s Notes.

This section (1020-24, 1020-25: amend. Acts 1966, ch. 255, § 35) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

24.265. Bailiff — Appointment — Compensation. [Repealed.]

Compiler’s Notes.

This section (Acts 1964, ch. 104, § 1; 1976, ch. 62, § 36) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491. Effective January 2, 1978.

24.270. Clerical assistants for judges of chancery branch. [Repealed.]

Compiler’s Notes.

This section (1020b-2: amend. Acts 1942, ch. 180, §§ 4, 7; 1966, ch. 255, § 36) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

CHAPTER 24A District Court

24A.010. Jurisdiction of District Court — Court of record and continuous session.

  1. The District Court is a court of limited jurisdiction; it has original jurisdiction in all matters specified in KRS 24A.110 to 24A.130 .
  2. The District Court may be authorized by law to adjudicate the actions or decisions of local administrative agencies, special districts, or boards. Such adjudication shall not constitute an appeal but an original action.
  3. The District Court has no appellate jurisdiction.
  4. The District Court is a court of record.
  5. The District Court is a court of continuous session. Sessions of the District Court may be scheduled at such times, including nights, weekends, and holidays, and at such locations, as may be convenient, subject to the direction of the Supreme Court by rule or order.

History. Enact. Acts 1976, (Ex. Sess.), ch. 28, § 1; 1998, ch. 517, § 5, effective September 1, 1998; 2003, ch. 66, § 14, effective June 24, 2003.

NOTES TO DECISIONS

1.Domestic Violence Orders.

Contrary to arguments by a husband who was the subject of a domestic violence order, a District Court was a court of limited jurisdiction and nothing within KRS ch. 24A gave District Courts exclusive jurisdiction in domestic violence proceedings. Under KRS 403.725 , the District Court had concurrent jurisdiction with Family Courts for the issuance of domestic violence orders. Gomez v. Gomez, 254 S.W.3d 838, 2008 Ky. App. LEXIS 145 (Ky. Ct. App. 2008).

Because a District Court did not have appellate jurisdiction over a decision by a code enforcement board under KRS 65.8831 , the District Court was to conduct a de novo review of the record created before the code enforcement board and was not confined to a determination as to whether the board’s decision was arbitrary. Highview Manor Ass'n, LLC v. Louisville Metro Health Dep't, 2008 Ky. App. LEXIS 185 (Ky. Ct. App. June 13, 2008), aff'd in part and rev'd in part, 319 S.W.3d 380, 2010 Ky. LEXIS 216 ( Ky. 2010 ).

2.Concurrent Jurisdiction.

Family Courts have concurrent jurisdiction with District Courts regarding the issuance of domestic violence orders. Gomez v. Gomez, 254 S.W.3d 838, 2008 Ky. App. LEXIS 145 (Ky. Ct. App. 2008).

3.Jurisdiction.

That part of KRS 65.8831(1) limiting review of a code enforcement board’s decision to the record created before the board was an unconstitutional grant of appellate jurisdiction to a district court in violation of Ky. Const. § 113 and KRS 24A.010(3). Such decisions were subject to de novo trials in district court. Louisville Metro Health Dep't v. Highview Manor Ass'n, LLC, 319 S.W.3d 380, 2010 Ky. LEXIS 216 ( Ky. 2010 ).

Cited:

Commonwealth v. Wilson, 610 S.W.2d 896, 1980 Ky. App. LEXIS 402 (Ky. Ct. App. 1980); Fawbush v. Bond, 613 S.W.2d 414, 1981 Ky. LEXIS 222 ( Ky. 1981 ); Commonwealth v. Carroll County Fiscal Court, 633 S.W.2d 720, 1982 Ky. App. LEXIS 216 (Ky. Ct. App. 1982).

Opinions of Attorney General.

In view of the fact that the District Judge must be available at all times to issue civil or criminal process and the fact that his is a court of continuous session, a person could not carry on the work of a District Judge and be a master commissioner at the same time. OAG 77-186 .

While prosecution as an habitual violator of the motor vehicle laws is not a criminal prosecution, it clearly comes under the jurisdiction of the District Court. OAG 78-177 .

Under the broad legislative policy expressed in KRS 178.080 and 178.115 , the acceptance of a road as a part of the county road system is left to the sound discretion of the fiscal court under the specific guidelines set out in those sections. The action of a fiscal court in exercising such discretion could be reviewed, by direct action, in a Circuit Court as an alleged arbitrary or capricious exercise of the discretion; no appeal can be taken from a fiscal court order to the District Court, however, since that court has no appellate jurisdiction. OAG 82-445 .

The enacting of an ordinance which contains provisions regarding the jurisdiction of the District Court which are identical to the provisions found in the Uniform Residential Landlord and Tenant Act, KRS 383.505 to 383.715 , would not be an enlargement of the court’s jurisdiction and would not, therefore, invalidate such an ordinance. OAG 83-251 .

Where a District Court has found, as a result of a preliminary hearing proceeding, that probable cause exists to believe that a felony has been committed, but a grand jury has not yet returned an indictment, the District Court does not have the authority to order that personal property seized incident to the arrest or by execution of a search warrant be returned to the defendant. OAG 91-67 .

Unless a District Court, upon a showing of good cause, amends a felony charge to a misdemeanor or finds a lack of probable cause and releases the defendant from custody, its sole authority with respect to a felony charge is the authority to examine the charge and determine whether to commit the defendant to jail or hold him to bail or other form of pre-trial release. OAG 91-67 .

A District Court which has found probable cause to believe a felony has been committed lacks jurisdiction to entertain a motion in that criminal proceeding for the release of personal property held as evidence by the Commonwealth. This section, which defines a District Court’s criminal jurisdiction, provides no such authority. Therefore, a District Court cannot entertain a motion to suppress evidence obtained incident to or in support of a felony charge on the grounds that such evidence was unlawfully obtained. However, there may be cases in which the District Court may be empowered, pursuant to its jurisdiction in civil matters, to entertain an independent civil proceeding for the return of property not subject to forfeiture which is held as evidence. OAG 91-67 .

Research References and Practice Aids

Cross-References.

Transition to district court, A.P., Part I, §§ 1 to 6.

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 13.

Kentucky Law Journal.

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1107 (1992-93).

24A.020. Exclusive jurisdiction granted District Court by statute — Exception.

When jurisdiction over any matter is granted to District Court by statute, such jurisdiction shall be deemed to be exclusive unless the statute specifically states that the jurisdiction shall be concurrent.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 1, effective January 1, 1978.

NOTES TO DECISIONS

1.Misdemeanor Offenses.

After an indictment has been returned incorporating misdemeanor offenses with related felony offenses, the misdemeanor offenses may be tried in the Circuit Court along with the felony offenses. Keller v. Commonwealth, 594 S.W.2d 589, 1980 Ky. LEXIS 196 ( Ky. 1980 ).

Cited:

Elery v. Martin, 4 S.W.3d 550, 1999 Ky. App. LEXIS 123 (Ky. Ct. App. 1999).

24A.030. Judicial districts. [Effective until January 2, 2023]

The state is divided into judicial districts, each to be composed of the following counties:

  1. First Judicial District. Fulton and Hickman.
  2. Second Judicial District. McCracken.
  3. Third Judicial District. Christian.
  4. Fourth Judicial District. Hopkins.
  5. Fifth Judicial District. Crittenden, Union, and Webster.
  6. Sixth Judicial District. Daviess.
  7. Seventh Judicial District. Logan and Todd.
  8. Eighth Judicial District. Warren.
  9. Ninth Judicial District. Hardin.
  10. Tenth Judicial District. Hart and Larue.
  11. Eleventh Judicial District. Green, Marion, Taylor, and Washington.
  12. Twelfth Judicial District. Henry, Oldham, and Trimble.
  13. Thirteenth Judicial District. Garrard, Jessamine, and Lincoln.
  14. Fourteenth Judicial District. Bourbon, Scott, and Woodford.
  15. Fifteenth Judicial District. Carroll, Grant, and Owen.
  16. Sixteenth Judicial District. Kenton.
  17. Seventeenth Judicial District. Campbell.
  18. Eighteenth Judicial District. Harrison, Nicholas, Pendleton, and Robertson.
  19. Nineteenth Judicial District. Bracken, Fleming, and Mason.
  20. Twentieth Judicial District. Greenup and Lewis.
  21. Twenty-first Judicial District. Bath, Menifee, Montgomery, and Rowan.
  22. Twenty-second Judicial District. Fayette.
  23. Twenty-third Judicial District. Estill, Lee, and Owsley.
  24. Twenty-fourth Judicial District. Lawrence, Johnson, and Martin.
  25. Twenty-fifth Judicial District. Clark and Madison.
  26. Twenty-sixth Judicial District. Harlan.
  27. Twenty-seventh Judicial District. Knox and Laurel.
  28. Twenty-eighth Judicial District. Pulaski and Rockcastle.
  29. Twenty-ninth Judicial District. Adair and Casey.
  30. Thirtieth Judicial District. Jefferson.
  31. Thirty-first Judicial District. Floyd.
  32. Thirty-second Judicial District. Boyd.
  33. Thirty-third Judicial District. Perry.
  34. Thirty-fourth Judicial District. Whitley and McCreary.
  35. Thirty-fifth Judicial District. Pike.
  36. Thirty-sixth Judicial District. Magoffin and Knott.
  37. Thirty-seventh Judicial District. Carter, Elliott, and Morgan.
  38. Thirty-eighth Judicial District. Butler, Edmonson, Ohio, and Hancock.
  39. Thirty-ninth Judicial District. Breathitt, Wolfe, and Powell.
  40. Fortieth Judicial District. Clinton, Russell, and Wayne.
  41. Forty-first Judicial District. Clay, Jackson, and Leslie.
  42. Forty-second Judicial District. Calloway.
  43. Forty-third Judicial District. Barren and Metcalfe.
  44. Forty-fourth Judicial District. Bell.
  45. Forty-fifth Judicial District. Muhlenberg and McLean.
  46. Forty-sixth Judicial District. Breckinridge, Grayson, and Meade.
  47. Forty-seventh Judicial District. Letcher.
  48. Forty-eighth Judicial District. Franklin.
  49. Forty-ninth Judicial District. Allen and Simpson.
  50. Fiftieth Judicial District. Boyle and Mercer.
  51. Fifty-first Judicial District. Henderson.
  52. Fifty-second Judicial District. Graves.
  53. Fifty-third Judicial District. Shelby, Anderson, and Spencer.
  54. Fifty-fourth Judicial District. Boone and Gallatin.
  55. Fifty-fifth Judicial District. Bullitt.
  56. Fifty-sixth Judicial District. Caldwell, Livingston, Lyon, and Trigg.
  57. Fifty-seventh Judicial District. Nelson.
  58. Fifty-eighth Judicial District. Marshall.
  59. Fifty-ninth Judicial District. Ballard and Carlisle.
  60. Sixtieth Judicial District. Cumberland and Monroe.

History. Enact. Acts 1976 (Ex. Sess.), ch. 28, § 2; 1984, ch. 311, § 1, effective January 6, 1986; 1986, ch. 251, § 1, effective July 15, 1986; 1986, ch. 274, § 1, effective July 15, 1986; 2000, ch. 541, § 3, effective July 1, 2000.

Compiler's Notes.

Section 5 of Acts 2000, ch. 541, effective July 1, 2000, read:

“(1) The present District Judge who resides in the Twenty-ninth Judicial District as amended by Section 3 of this Act [this section] shall remain the District Judge for the Twenty-ninth Judicial District.

“(2) The present District Judge of the former Twenty-ninth Judicial District who resides in the Sixtieth Judicial District as created by Section 3 of this Act [this section] shall become the District Judge for the Sixtieth Judicial District.

“(3) No new vacancy shall be created by Section 3 of this Act [this section]. Each present District Judge shall serve the district, as amended or created by Section 3 of this Act [this section], in which he resides for the remainder of his present elected term.”

NOTES TO DECISIONS

1.Judicial Immunity.

Where plaintiff charged with traffic offenses was 15 years old at the time of the offense and thus properly under the exclusive jurisdiction of the juvenile session of the District Court under KRS 208.020 , (now repealed) District Court judge who had jurisdiction over traffic offenses under this section and KRS 24A.110 was immune from suit alleging civil rights violations in plaintiff’s arrest and detention, since, despite judge’s erroneous exercise of jurisdiction, he was not so clearly without jurisdiction as to deprive him of immunity. Allsup v. Knox, 508 F. Supp. 57, 1980 U.S. Dist. LEXIS 16607 (E.D. Ky. 1980 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Bartlett, The Selection and Election of Judges in Kentucky, Vol. 53, No. 3, Summer 1989, Ky. Bench & Bar 26.

24A.030. Judicial districts. [Effective January 2, 2023]

The state is divided into judicial districts, each to be composed of the following counties:

  1. First Judicial District. Ballard, Carlisle, Fulton, and Hickman.
  2. Second Judicial District. McCracken.
  3. Third Judicial District. Christian.
  4. Fourth Judicial District. Hopkins.
  5. Fifth Judicial District. Crittenden, Union,  and Webster.
  6. Sixth Judicial District. Daviess.
  7. Seventh Judicial District. Logan and Todd.
  8. Eighth Judicial District. Warren.
  9. Ninth Judicial District. Hardin.
  10. Tenth Judicial District. Hart and Larue.
  11. Eleventh Judicial District. Green, Marion,  Taylor, and Washington.
  12. Twelfth Judicial District. Henry, Oldham,  and Trimble.
  13. Thirteenth Judicial District. Garrard, Jessamine,  and Lincoln.
  14. Fourteenth Judicial District. Bourbon, Scott,  and Woodford.
  15. Fifteenth Judicial District. Carroll, Grant,  and Owen.
  16. Sixteenth Judicial District. Kenton.
  17. Seventeenth Judicial District. Campbell.
  18. Eighteenth Judicial District. Harrison, Nicholas,  Pendleton, and Robertson.
  19. Nineteenth Judicial District. Bracken, Fleming,  and Mason.
  20. Twentieth Judicial District. Greenup and Lewis.
  21. Twenty-first Judicial District. Bath, Menifee,  Montgomery, and Rowan.
  22. Twenty-second Judicial District. Fayette.
  23. Twenty-third Judicial District. Estill, Lee,  and Owsley.
  24. Twenty-fourth Judicial District. Lawrence, Johnson,  and Martin.
  25. Twenty-fifth Judicial District. Clark and Madison.
  26. Twenty-sixth Judicial District. Harlan.
  27. Twenty-seventh Judicial District. Knox and Laurel.
  28. Twenty-eighth Judicial District. Pulaski and Rockcastle.
  29. Twenty-ninth Judicial District. Adair and Casey.
  30. Thirtieth Judicial District. Jefferson.
  31. Thirty-first Judicial District. Floyd.
  32. Thirty-second Judicial District. Boyd.
  33. Thirty-third Judicial District. Perry.
  34. Thirty-fourth Judicial District. Whitley and McCreary.
  35. Thirty-fifth Judicial District. Pike.
  36. Thirty-sixth Judicial District. Magoffin and  Knott.
  37. Thirty-seventh Judicial District. Carter, Elliott, and Morgan.
  38. Thirty-eighth Judicial District. Butler, Edmonson,  Ohio, and Hancock.
  39. Thirty-ninth Judicial District. Breathitt, Wolfe,  and Powell.
  40. Fortieth Judicial District. Clinton, Russell,  and Wayne.
  41. Forty-first Judicial District. Clay, Jackson,  and Leslie.
  42. Forty-second Judicial District. Calloway.
  43. Forty-third Judicial District. Barren and Metcalfe.
  44. Forty-fourth Judicial District. Bell.
  45. Forty-fifth Judicial District. Muhlenberg and  McLean.
  46. Forty-sixth Judicial District. Breckinridge,  Grayson, and Meade.
  47. Forty-seventh Judicial District. Letcher.
  48. Forty-eighth Judicial District. Franklin.
  49. Forty-ninth Judicial District. Allen and Simpson.
  50. Fiftieth Judicial District. Boyle and Mercer.
  51. Fifty-first Judicial District. Henderson.
  52. Fifty-second Judicial District. Graves.
  53. Fifty-third Judicial District. Shelby, Anderson,  and Spencer.
  54. Fifty-fourth Judicial District. Boone and Gallatin.
  55. Fifty-fifth Judicial District. Bullitt.
  56. Fifty-sixth Judicial District. Caldwell, Livingston,  Lyon, and Trigg.
  57. Fifty-seventh Judicial District. Nelson.
  58. Fifty-eighth Judicial District. Marshall.
  59. Fifty-ninth Judicial District. Cumberland and Monroe.

HISTORY: Enact. Acts 1976 (Ex. Sess.), ch. 28, § 2; 1984, ch. 311, § 1, effective January 6, 1986; 1986, ch. 251, § 1, effective July 15, 1986; 1986, ch. 274, § 1, effective July 15, 1986; 2000, ch. 541, § 3, effective July 1, 2000; 2018 ch. 57, § 8, effective January 2, 2023.

Compiler's Notes.

For this section as effective until January 2, 2023, see the bound volume.

24A.040. Judicial districts with one District Judge.

Each judicial district shall have one (1) District Judge, except as otherwise provided.

History. Enact. Acts 1976 (Ex. Sess.), ch. 28, § 3.

24A.050. Judicial districts with two District Judges and two numbered divisions.

The following judicial districts are entitled to two (2) District Judges and shall have two (2) numbered divisions of the District Court:

  1. Second Judicial District.
  2. Third Judicial District.
  3. Fourth Judicial District.
  4. Ninth Judicial District.
  5. Eleventh Judicial District.
  6. Twelfth Judicial District.
  7. Thirteenth Judicial District.
  8. Fourteenth Judicial District.
  9. Fifteenth Judicial District.
  10. Seventeenth Judicial District.
  11. Twenty-first Judicial District.
  12. Twenty-fourth Judicial District.
  13. Twenty-seventh Judicial District.
  14. Twenty-eighth Judicial District.
  15. Thirty-first Judicial District.
  16. Thirty-second Judicial District.
  17. Thirty-fourth Judicial District.
  18. Thirty-fifth Judicial District.
  19. Thirty-eighth Judicial District.
  20. Fortieth Judicial District.
  21. Forty-first Judicial District.
  22. Forty-sixth Judicial District.
  23. Forty-eighth Judicial District.
  24. Fifty-first Judicial District.
  25. Fifty-third Judicial District.
  26. Fifty-fourth Judicial District.
  27. Fifty-sixth Judicial District.

HISTORY: Enact. Acts 1976 (Ex. Sess.), ch. 28, § 4; 1978, ch. 90, § 1, effective June 17, 1978; 1980, ch. 247, § 2, effective July 15, 1980; 1984, ch. 311, § 2, effective January 6, 1986; 1986, ch. 113, § 1, effective July 15, 1986; 1986, ch. 274, § 2, effective July 15, 1986; 1996, ch. 307, § 2, effective July 15, 1996; 1998, ch. 517, § 7, effective September 1, 1998, September 1, 1999, and January 1, 2000; 2000, ch. 541, § 4, effective July 1, 2000; 2001, ch. 72, § 3, effective June 21, 2001; 2003, ch. 66, § 9, effective June 24, 2003; 2005, ch. 173, Pt. XIII, 1.(3), § 4, effective January 1, 2007, 2006, ch. 250, § 4, effective January 1, 2007; 2018 ch. 57, § 5, effective July 14, 2018.

Legislative Research Commission Notes.

(1/1/2007). 2006 Ky. Acts ch. 250, Part V, sec. 6, provides that the new judgeships created by sections 1 to 5 of that part shall become effective January 1, 2007. The revisions to this statute in that Act supersede those made in 2005 Ky. Acts 173, Pt. XIII, 1.(3), sec. 4, which were also to be effective January 1, 2007. That 2005 version of the statute was used as the base document for the 2006 revisions.

24A.060. Judicial districts with three District Judges and three numbered divisions.

The following judicial districts are entitled to three (3) District Judges and shall have three (3) numbered divisions of the District Court:

  1. Sixth Judicial District.
  2. Eighth Judicial District.
  3. Sixteenth Judicial District;
  4. Twenty-fifth Judicial District.

History. Enact. Acts 1976 (Ex. Sess.), ch. 28, § 5; 1996, ch. 307, § 1, effective July 15, 1996; 1998, ch. 517, § 8, effective September 1, 1998, and September 1, 1999; 2003, ch. 66, § 10, effective June 24, 2003; 2005, ch. 173, Pt. XIII, 1.(3), § 5, effective January 1, 2007; 2006, ch. 250, § 5, effective January 1, 2007; 2009, ch. 44, § 3, effective January 3, 2011.

Legislative Research Commission Notes.

(1/1/2007). 2006 Ky. Acts ch. 250, Part V, sec. 6, provides that the new judgeships created by subsections (2) and (3) of this statute shall become effective January 1, 2007. The revisions to this statute in that Act supersede those made in 2005 Ky. Acts 173, Pt. XIII, 1.(3), sec. 5, which were also to be effective January 1, 2007. That 2005 version of the statute was used as the base document for the 2006 revisions.

24A.070. Sixteenth Judicial District. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976 (Ex. Sess.), ch. 28, § 6.) was repealed by 2009 Ky. Acts ch. 44, sec. 4, effective January 3, 2011.

24A.080. Twenty-second Judicial District.

The Twenty-second Judicial District is entitled to five (5) District Judges and shall have five (5) numbered divisions of the District Court.

History. Enact. Acts 1976 (Ex. Sess.), ch. 28, § 7; 2003, ch. 66, § 11, effective June 24, 2003.

24A.090. Thirtieth Judicial District.

The Thirtieth Judicial District is entitled to seventeen (17) District Judges and shall have seventeen (17) numbered divisions of the District Court.

History. Enact. Acts 1976 (Ex. Sess.), ch. 28, § 8; 2003, ch. 66, § 12, effective June 24, 2003.

24A.100. Trial commissioners.

  1. In any county which does not have a District Judge resident in the county there shall be a trial commissioner.
  2. Trial commissioners shall be appointed in the manner required by Section 113 of the Constitution of Kentucky and shall perform such duties as may be directed by the Supreme Court.
  3. Trial commissioners in District Court shall be compensated as provided in the judicial personnel system, provided, however that no trial commissioner shall be compensated at a rate greater than seven thousand two hundred dollars ($7,200) per year. Except that during the disability or suspension of a District Judge for a period in excess of sixty (60) days, a trial commissioner who is qualified as an attorney and who is authorized to perform extraordinary duties, may be compensated by the Supreme Court in an amount not exceeding the salary of a District Judge, provided such trial commissioner shall not engage in the practice of law during the period of extraordinary service.

History. Enact. Acts 1976 (Ex. Sess.), ch. 28, § 9; 1976 (Ex. Sess.), ch. 22, § 78, effective January 2, 1978; 1982, ch. 449, § 1, effective July 15, 1982.

Opinions of Attorney General.

A person would be prohibited from holding the office of trial commissioner, which is a state office, while at the same time serving as county judge/executive. OAG 77-661 .

There is no authority under this section for the appointment of a judge pro tem of the District Court or the appointment of a pro tem trial commissioner. OAG 77-661 .

Since the position of trial commissioner is a state office and membership on the county election board is a county office, an individual would be prohibited from holding both positions at the same time by Const., § 165 and KRS 61.080 . OAG 80-266 .

A county sheriff must execute and make due return on all criminal process lawfully issued by a county trial commissioner (process as authorized by SCR 5.030 ) and placed in the sheriff’s hands or with his lawful deputies. OAG 80-332 .

The positions of deputy circuit clerk, a state officer under KRS 30A.010 , and trial commissioner of the county District Court, a state officer under this section are compatible with one another, since neither Const., § 165, nor KRS 61.080 prohibits a person from holding two state offices at the same time; however, they may be incompatible under the doctrine of practical or common law. OAG 81-124 .

A lawyer who represents defendants in criminal cases cannot also be appointed to the position of trial commissioner pursuant to this section and Const., § 113, since the judicial functions of the trial commissioner are inherently inconsistent and repugnant to the role of a defense attorney in criminal cases, and, in addition, the trial commissioner of one district court cannot personally appear in criminal matters before another District Court within the same judicial district. OAG 81-177 .

If a city has either established a position of legal advisor as a form of city employment or created the office of city attorney, no one could hold at the same time the state office of trial commissioner and the office of city attorney or city employment without violating Const., § 165 and KRS 61.080 . However, if an attorney is employed on a personal service contract basis, he would be considered an independent contractor and there would be no constitutional or statutory objection to his serving as trial commissioner of the District Court. OAG 82-502 .

24A.110. Criminal jurisdiction.

  1. The District Court shall have exclusive jurisdiction to make final disposition of all criminal matters, including violations of county, urban-county, or city ordinances or codes, except:
    1. Offenses denominated by statute as felonies or capital offenses; and
    2. Offenses punishable by death or imprisonment in the penitentiary.
  2. The District Court has exclusive jurisdiction to make a final disposition of any charge or a public offense denominated as a misdemeanor or violation, except where the charge is joined with an indictment for a felony, and all violations of county, urban-county, or city ordinances and, prior to trial, to commit the defendant to jail or hold him to bail or other form of pretrial release.
  3. The District Court has, concurrent with Circuit Court, jurisdiction to examine any charge of a public offense denominated as a felony or capital offense or which may be punished by death or imprisonment in the penitentiary and to commit the defendant to jail or hold him to bail or other form of pretrial release.
  4. The District Court may, upon motion and for good cause shown, reduce a charge of a felony to a misdemeanor in accordance with the Rules of Criminal Procedure.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 2; 1976 (Ex. Sess.), ch. 28, § 10.

NOTES TO DECISIONS

Analysis

1.Disposition of Felony Cases.

Where jurisdiction initially attached in the Circuit Court, it was not lost when that court, during the course of the trial, dismissed one felony count of a three-count indictment; jurisdiction having attached by reason of the felony charge was not divested by its final determination. Broughton v. Commonwealth, 596 S.W.2d 22, 1979 Ky. App. LEXIS 520 (Ky. Ct. App. 1979).

District Court ruling that there was no probable cause for search of defendant charged with drug possession and that evidence seized in the search should be suppressed was not binding on Circuit Court in subsequent trial since District Courts have no jurisdiction for final disposition of felony cases under this section. Waugh v. Commonwealth, 605 S.W.2d 43, 1980 Ky. App. LEXIS 366 (Ky. Ct. App. 1980).

Where a grand jury returned an indictment charging defendant with burglary in the first degree and persistent felony offender in the first degree, the issuance of the indictment on the felony charge terminated the jurisdiction in the District Court and placed the sole jurisdiction in the Circuit Court; therefore, the District Court had no jurisdiction to accept the defendant’s plea to a reduced charge and there was no double jeopardy when the defendant was subsequently arraigned in the Circuit Court. Commonwealth v. Hamblem, 628 S.W.2d 345, 1981 Ky. App. LEXIS 315 (Ky. Ct. App. 1981).

This section unequivocally places jurisdiction in the Circuit Court when an indictment charges both a felony and a misdemeanor. Jackson v. Commonwealth, 633 S.W.2d 61, 1982 Ky. LEXIS 246 ( Ky. 1982 ).

District Court has no power to dispose of any charges which constitute lesser included offenses of the felony charged in the indictment. Jackson v. Commonwealth, 633 S.W.2d 61, 1982 Ky. LEXIS 246 ( Ky. 1982 ).

Action of the District Court in accepting a plea of guilty to a possession charge after the return of the grand jury’s indictment for trafficking did not preclude a Circuit Court conviction on the same possession charge, as once the indictment was returned charging the offense of trafficking, the District Court no longer had jurisdiction to make a final disposition of the offense of possession, a lesser included offense. Jackson v. Commonwealth, 633 S.W.2d 61, 1982 Ky. LEXIS 246 ( Ky. 1982 ).

Until such time as an indictment is reported to the Circuit Judge in a felony case, the District Court may exercise its jurisdiction and enter any order or judgment it deems appropriate; the reporting of an indictment to the Circuit Judge is essential to the validity of that action. Commonwealth v. Karnes, 657 S.W.2d 583, 1983 Ky. LEXIS 263 ( Ky. 1983 ).

As a District Court lacked jurisdiction to make a final adjudication as to defendant’s felony charges, its dismissal of those charges did not preclude the Commonwealth, on double jeopardy grounds, from proceeding against defendant in Circuit Court on the same charges. Commonwealth v. Stephenson, 82 S.W.3d 876, 2002 Ky. LEXIS 165 ( Ky. 2002 ).

County attorney and the district court did not have the authority to approve a deferred prosecution on a charge of first-degree possession of a controlled substance under KRS 218A.14151 because only the Commonwealth’s attorney and the circuit court had jurisdiction over a felony offense. Commonwealth v. Vibbert, 397 S.W.3d 910, 2013 Ky. App. LEXIS 60 (Ky. Ct. App. 2013).

2.Misdemeanor Offenses.

After an indictment has been returned incorporating misdemeanor offenses with related felony offenses, the misdemeanor offenses may be tried in the Circuit Court along with the felony offenses. Keller v. Commonwealth, 594 S.W.2d 589, 1980 Ky. LEXIS 196 ( Ky. 1980 ).

A District Court has jurisdiction to hold a preliminary hearing on a misdemeanor charge and to refer that misdemeanor to the grand jury if it is joined with a felony. When the District Court conducts such a preliminary hearing, jeopardy will not attach on the misdemeanor to the extent that it has been joined with a felony. Commonwealth v. Arnette, 701 S.W.2d 407, 1985 Ky. LEXIS 296 ( Ky. 1985 ).

Special Circuit Judge could not enforce his judgment accepting defendant’s plea of guilty of charge of driving under the influence (DUI) since such charge had not been consolidated with felony charge of possession of cocaine and, since District Court and not Circuit Court had jurisdiction. Jackson v. Commonwealth, 806 S.W.2d 643, 1991 Ky. LEXIS 34 ( Ky. 1991 ).

A Circuit Court, vested with jurisdiction by a grand jury indictment, does not lose jurisdiction when a felony indictment is amended to a misdemeanor. Commonwealth v. Adkins, 29 S.W.3d 793, 2000 Ky. LEXIS 109 ( Ky. 2000 ).

Although a Governor’s blanket pardon for individuals involved in a merit system investigation was valid under Ky. Const. § 77 and there was no evidence that defendant rejected the pardon, the order dismissing the indictment was vacated because the Circuit Court lacked jurisdiction and the District Court had exclusive jurisdiction over the misdemeanor charges under KRS 24A.110 . Commonwealth v. Groves, 209 S.W.3d 492, 2006 Ky. App. LEXIS 345 (Ky. Ct. App. 2006).

District court properly granted summary judgment to the police officer on the arrestee’s claim for false arrest because officer acted pursuant to legal process, and although it was later determined that arrest warrant lacked probable cause, district court had authority to issue the warrant based on a charge of terroristic threatening. Juillerat v. Mudd, 735 Fed. Appx. 887, 2018 U.S. App. LEXIS 14238 (6th Cir. Ky. 2018 ).

3.Remand of Misdemeanor Charge.

Where a felony and misdemeanor are originally joined but later separated, the Circuit Court may remand the misdemeanor to the District Court for disposition. Kimbro v. Lassiter, 648 S.W.2d 860, 1983 Ky. LEXIS 237 ( Ky. 1983 ).

The Circuit Court judge did not commit reversible error in remanding a misdemeanor charge to the District Court after a felony count that was coupled with the misdemeanor was dismissed by the Circuit Court. Kimbro v. Lassiter, 648 S.W.2d 860, 1983 Ky. LEXIS 237 ( Ky. 1983 ).

Where a misdemeanor offense and a felony offense are joined in a single indictment, after the Commonwealth dismisses the felony charge then the trial court should immediately remand the misdemeanor to the District Court. Jackson v. Commonwealth, 806 S.W.2d 643, 1991 Ky. LEXIS 34 ( Ky. 1991 ).

4.Judicial Immunity.

Where plaintiff charged with traffic offenses was 15 years old at the time of the offense and thus properly under the exclusive jurisdiction of the juvenile session of the District Court under KRS 208.020 (now repealed), District Court judge who had jurisdiction over traffic offenses under KRS 24A.030 and this section was immune from suit alleging civil rights violations in plaintiff’s arrest and detention, since, despite judge’s erroneous exercise of jurisdiction, he was not so clearly without jurisdiction as to deprive him of immunity. Allsup v. Knox, 508 F. Supp. 57, 1980 U.S. Dist. LEXIS 16607 (E.D. Ky. 1980 ).

5.Reduction of Charges.

Since District Court had concurrent jurisdiction with Circuit Court over charges of second-degree robbery, receiving stolen property and first-degree persistent felony offender, the District Court had authority to reduce such charges to a misdemeanor and enter judgment thereon prior to the return of indictment in Circuit Court and, subsequently, Circuit Court acted properly in dismissing the case on grounds of double jeopardy. Commonwealth v. Karnes, 657 S.W.2d 583, 1983 Ky. LEXIS 263 ( Ky. 1983 ).

6.Administrative Search Warrants.

KRS 338.101(2), which vests exclusive jurisdiction in the Franklin Circuit Court to issue a search warrant to enforce the right of the Commissioner of Labor to conduct inspections of businesses, is not in conflict with subsection (1) of this section as this section deals exclusively with the jurisdiction of District Court in criminal matters. Stovall v. A. O. Smith Corp., 676 S.W.2d 475, 1984 Ky. App. LEXIS 501 (Ky. Ct. App. 1984).

7.Traffic Offenses.

Writ of prohibition was inappropriate based on a judge’s lack of jurisdiction to sua sponte invalidate Ky. Rev. Stat. Ann. § 186.574(6) as unconstitutional where district courts had subject-matter jurisdiction over traffic offenses, and the alleged errors implicated particular-case jurisdiction, which belonged to the erroneous action category of writs. Delahanty v. Commonwealth, 558 S.W.3d 489, 2018 Ky. App. LEXIS 146 (Ky. Ct. App. 2018).

Cited:

Stratford v. Crossman, 655 S.W.2d 500, 1983 Ky. App. LEXIS 343 (Ky. Ct. App. 1983); Fulton v. Commonwealth, 849 S.W.2d 553, 1992 Ky. App. LEXIS 2 03 (Ky. Ct. App. 1992); Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ); Peters v. Commonwealth, — S.W.3d —, 2010 Ky. App. LEXIS 2 (Ky. Ct. App. 2010); Jackson v. Commonwealth, 363 S.W.3d 11, 2012 Ky. LEXIS 25 ( Ky. 2012 ).

Notes to Unpublished Decisions

1.Misdemeanor Offenses.

Unpublished decision: Pursuant to KRS 24A.110(2), the district court, rather than the circuit court, enjoyed exclusive jurisdiction to make a final disposition of the defendant’s charge of failing to register a change of address as a sex offender, because the charge against the defendant could only be brought under the 1998 version of 17.510 , for which the offense was a Class A Misdemeanor, rather than the 2000 version of the statute, for which the offense was a Class D Felony. Peterson v. Shake, 120 S.W.3d 707, 2003 Ky. LEXIS 201 ( Ky. 2003 ).

Opinions of Attorney General.

A grand jury may return a misdemeanor indictment, however it would be impractical to affirmatively seek a misdemeanor indictment, where it is not required, and is not a usual method of procedure. OAG 78-168 .

The District Court has jurisdiction to dispose of any nonfelony criminal offense and the charge may be brought by information or complaint. OAG 78-168 .

The enforcement of city ordinances is generally within the exclusive jurisdiction of the District Court and all fees, fines, forfeitures and costs in any District Court case shall be collected and accounted for by the circuit court clerk and paid into the state treasury; however, the city does not receive fines imposed by the District Court and collected by the Circuit Court Clerk although the city, pursuant to former KRS 24A.190 through 24A.192 , may have funds returned to it if it qualifies under those statutes. OAG 78-682 .

The only reading of KRS 318.190 , 23A.010 and this section which gives effect to all three statutes is that the misdemeanor penalty established by KRS 318.990 must be prosecuted in District Court. OAG 78-742 .

Where a defendant, who is charged with a felony, is placed on trial before a Circuit Judge and jury, and the felony charge is amended to a lesser included misdemeanor charge by the Circuit Judge, the Circuit Court must proceed with trial of the misdemeanor to judgment. OAG 79-570 .

The authority for a District Court to order transfer of District Court prisoners to an out-of-the-county jail is an inherent power under its general criminal jurisdiction. OAG 79-588 .

The county attorney is required to prosecute violations of municipal ordinances in the District Court. OAG 80-34 .

The District Court’s criminal jurisdiction under this section inherently gives him the authority to see to it that prisoners under his jurisdiction and requiring incarceration are placed in a suitable county jail. OAG 80-129 .

KRS 61.170 requires an indictment by a Circuit Court grand jury in order to charge the offense of malfeasance or neglect of county officers; but since this section vests exclusive jurisdiction of misdemeanor cases, generally, in the District Court, the Circuit Court in which such an indictment is returned has necessarily, because of the jurisdictional statute, the authority and duty to refer the indictment for trial or other appropriate disposition to the District Court of that county. OAG 80-152 .

Even if subsection (4) of this section is interpreted literally, it is impossible for a District Court to amend a third or subsequent offense under KRS Chapter 242 and treat it as a first or second offense, since the convictions of the first and second offense are already of record and nothing can change that fact. OAG 80-335 .

Since the record of two or more prior convictions under KRS Chapter 242 indicates that the District Court did not have jurisdiction to try the defendant a third time, the defendant could, under RCr 10.22 (abolished), file a motion in arrest of judgment on the ground of no jurisdiction, provided that the motion is filed within five days after determination of guilt; in view of RCr 13.04, a defendant in such case could file a motion to set aside the judgment under the terms outlined in CR 60.02. OAG 80-335 .

Where court records show two convictions under KRS Chapter 242, the third offense under that chapter would be a felony, and the District Court would not have jurisdiction to accept a guilty plea or try the case since this section expressly provides that the District Court has no jurisdiction of felony cases. OAG 80-335 .

The judge has the primary duty to determine where the defendant is to be committed and to enter an order directing such commitment; however, the court may order the sheriff to keep it informed of what facilities are available for housing the prisoners, and where the judges have ordered the sheriff to keep them informed of what facilities are available to house prisoners, he must do so. OAG 80-482 .

Where a peace officer issues a citation pursuant to KRS 431.015 charging a person with the violation of a city ordinance, and the person fails to appear in response to the citation, the District Court cannot acquire jurisdiction under subsection (2) of this section and cannot impose a fine against the person until the person is properly before the court, either by way of a voluntary personal appearance or pursuant to a warrant or summons. OAG 81-252 .

Felony cases do not have to go through District Court before they are presented to the grand jury and once a person is indicted on a felony charge by a grand jury, the case cannot be sent back to the District Court since the District Court no longer has jurisdiction in the case. OAG 83-31 .

The District Court has concurrent jurisdiction with the Circuit Court to examine a charge of first-degree wanton endangerment, a felony. OAG 83-31 .

A District Court which has found probable cause to believe a felony has been committed lacks jurisdiction to entertain a motion in that criminal proceeding for the release of personal property held as evidence by the Commonwealth. This section, which defines a District Court’s criminal jurisdiction, provides no such authority. Therefore, a District Court cannot entertain a motion to suppress evidence obtained incident to or in support of a felony charge on the grounds that such evidence was unlawfully obtained. However, there may be cases in which the District Court may be empowered, pursuant to its jurisdiction in civil matters, to entertain an independent civil proceeding for the return of property not subject to forfeiture which is held as evidence. OAG 91-67 .

Unless a District Court, upon a showing of good cause, amends a felony charge to a misdemeanor or finds a lack of probable cause and releases the defendant from custody, its sole authority with respect to a felony charge is the authority to examine the charge and determine whether to commit the defendant to jail or hold him to bail or other form of pre-trial release. OAG 91-67 .

Where a District Court has found, as a result of a preliminary hearing proceeding, that probable cause exists to believe that a felony has been committed, but a grand jury has not yet returned an indictment, the District Court does not have the authority to order that personal property seized incident to the arrest or by execution of a search warrant be returned to the defendant. OAG 91-67 .

Research References and Practice Aids

Kentucky Law Journal.

Weigand and Farr, Part of the Moving Stream: State Constitutional Law, Sodomy, and Beyond, 81 Ky. L.J. 449 (1992-93).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Bill of Costs (AOC 130), Form 3.07.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Circuit Court, § 4.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for District Courts, § 3.00.

24A.120. Civil and probate jurisdiction.

District Court shall have exclusive jurisdiction in:

  1. Civil cases in which the amount in controversy does not exceed five thousand dollars ($5,000), exclusive of interest and costs, except matters affecting title to real estate and matters of equity; however, nothing herein shall prohibit execution levy on real estate in enforcement of judgment of District Court;
  2. Matters involving probate, except matters contested in an adversary proceeding. Such adversary proceeding shall be filed in Circuit Court in accordance with the Kentucky Rules of Civil Procedure and shall not be considered an appeal;
  3. Matters not provided for by statute to be commenced in Circuit Court shall be deemed to be nonadversarial within the meaning of subsection (2) of this section and therefore are within the jurisdiction of the District Court; and
  4. Matters involving trusts in accordance with KRS 386B.2-030 .

History. Enact. Acts 1976 (Ex. Sess.), ch. 28, § 11; 1978, ch. 384, § 122, effective June 17, 1978; 1980, ch. 54, § 1, effective July 15, 1980; 1980, ch. 259, § 1, effective July 15, 1980; 1982, ch. 188, § 1, effective July 15, 1982; 1988, ch. 137, § 2, effective July 15, 1988; 1998, ch. 517, § 6, effective September 1, 1998; 2002, ch. 320, § 1, effective July 15, 2002; 2003, ch. 66, § 15, effective June 24, 2003; 2011, ch. 91, § 1, effective June 8, 2011; 2014, ch. 25, § 96, effective July 15, 2014.

Legislative Research Commission Notes.

(6/8/2011). 2011 Ky. Acts ch. 91, sec. 4, provides that “any case which has been filed in a Circuit Court or District Court prior to the effective date of this Act (June 8, 2011) and the change in jurisdictional amounts (made by 2011 Ky. Acts ch. 91) shall remain in the court in which the case was originally filed, until the disposition of the case.”

(6/24/2003). Under the authority of KRS 7.136 , the Reviser of Statutes has renumbered the paragraphs and subsections of this section. To conform with this renumbering, a reference in subsection (3) to “paragraph (b) of this subsection” has been changed to read “subsection (2) of this section.”

NOTES TO DECISIONS

1.Civil.

Appellate court properly granted a lessee’s petition for a writ of prohibition of the first class—thereby vacating the circuit court’s denial of its motion to dismiss the lessors’ claim for breach of contract—because the challenged writ action was correctly initiated in the appellate court since none of the lessors satisfied the amount-in-controversy requirement prescribed by the legislature or met the court’s jurisdictional requirement in order to certify the class, and, while the lessors sought “legal and equitable remedies,” their single cause of action was breach of contract, which was regularly adjudicated in the district court. Imhoff v. House, 2021 Ky. LEXIS 307 (Ky. Aug. 26, 2021).

2.—Jurisdictional Amount.

A single plaintiff may not aggregate multiple claims against multiple parties in order to satisfy the jurisdictional amount necessary to invoke subject matter jurisdiction. Dalton v. First Nat'l Bank, 712 S.W.2d 954, 1986 Ky. App. LEXIS 1165 (Ky. Ct. App. 1986).

Even though two of a company’s three claims against a credit card debtor did not meet the amount in controversy limit in KRS 24A.120(1), it could aggregate the claims in the same action under CR 18.01. Nat'l Check Bureau, Inc. v. Irby, 229 S.W.3d 913, 2007 Ky. App. LEXIS 206 (Ky. Ct. App. 2007).

For the purpose of conferring jurisdiction, proof of damages is not required. Jackson v. Beattyville Water Dep't, 278 S.W.3d 633, 2009 Ky. App. LEXIS 28 (Ky. Ct. App. 2009).

Cemetery owner’s complaint and supplemental interrogatory answers, which set out damages allegedly caused by a water department to the cemetery that exceeded $4,000, satisfied the jurisdictional requirements under KRS chs. 23A and 24A for bringing suit in Circuit Court; the damage amount did not have to be proven to establish jurisdiction. Jackson v. Beattyville Water Dep't, 278 S.W.3d 633, 2009 Ky. App. LEXIS 28 (Ky. Ct. App. 2009).

One type of writ of prohibition was not granted in a contractual dispute between a health plan and a laboratory because a circuit court was not acting outside of its jurisdiction when it ordered a deposit of money into the court; circuit courts had jurisdiction over contractual payments when the amount in controversy exceeded the minimum jurisdictional limit. PremierTox 2.0 v. Miniard, 407 S.W.3d 542, 2013 Ky. LEXIS 385 ( Ky. 2013 ).

Landlord was entitled to a writ of prohibition as to a forcible detainer action because the action was brought before a district court whose jurisdiction did not exceed $5,000, and the amount in controversy was $8,100, so the court lacked subject matter jurisdiction, and the court’s orders were void, although the landlord was not entitled to a writ on the grounds Ky. R. Civ. P. 59.05 did not apply to forcible detainer actions, even though the landlord was correct. Anthony v. McLaughlin, 566 S.W.3d 581, 2018 Ky. App. LEXIS 305 (Ky. Ct. App. 2018).

3.—Notice Requirements.

Although subsection (2) of KRS 394.240 uses such language as “shall forthwith lodge a notice,” the failure to file such a notice does not strip the Circuit Court of jurisdiction to hear the case; jurisdiction of a Circuit Court is invoked by filing a complaint in accordance with CR 3 regardless of whether the notice requirements of subsection KRS 394.240 are complied with. Justice v. Conn, 724 S.W.2d 227, 1986 Ky. App. LEXIS 1494 (Ky. Ct. App. 1986).

Subsection (2) of this section states that the Circuit Court shall have jurisdiction over adversary proceedings which shall be filed in accordance with the Kentucky Rules of Civil Procedure and therefore, although KRS 394.240(2) uses such language as “shall forthwith lodge a notice,” the failure to file such a notice does not strip the Circuit Court of jurisdiction to hear the case. West v. Goldstein, 830 S.W.2d 379, 1992 Ky. LEXIS 50 ( Ky. 1992 ).

4.—Equitable Relief.

In holding that a customer had abandoned certain vehicle parts to an auto parts retailer after not paying for services performed for eleven (11) years, the District Court was not fashioning equitable relief, but rather was merely acknowledging the retailer’s legal claim to the parts following the customer’s abandonment of the auto parts. Kelley v. Nationwide Auto Restoration, LLC, 246 S.W.3d 470, 2007 Ky. App. LEXIS 493 (Ky. Ct. App. 2007).

5.Guardianship Proceedings.

District court acted soundly within its jurisdiction when it issued an order requiring a guardian to provide all financial records for an accounting and to make restitution to a guardianship account, because the district court was granted exclusive jurisdiction to manage and settle guardianship accounts under KRS 24A.120 , 387.520 . Karem v. Bryant, 370 S.W.3d 867, 2012 Ky. LEXIS 82 ( Ky. 2012 ).

A son’s motion for discretionary review, pursuant to CR 76.20(1), of a judgment affirming a District Court order removing him as co-guardian for his mother was denied because the matter was not a probate proceeding, and the District Court’s jurisdiction was provided by KRS 387.520(1); even if KRS 24A.120 (2) applied, the removal of a guardian was nonadversarial under KRS 24A.120 (3) since no statute granted a Circuit Court jurisdiction to remove a guardian and since the General Assembly had vested District Courts with exclusive original jurisdiction in removal matters, it was immaterial whether the removal proceeding could have been construed as adversarial pursuant to KRS 24A.120. Hall v. Coyle, 240 S.W.3d 656, 2007 Ky. App. LEXIS 419 (Ky. Ct. App. 2007).

6.Support Action.

When child support arrearages exceed $2,500.00 in a Uniform Reciprocal Enforcement of Support Act (URESA) action, KRS 407.170 (repealed) controls because subsection (1) of this section is the general civil jurisdiction statute of the District Court, while KRS 407.170 (repealed) is addressed specifically to jurisdiction in URESA actions; therefore, the District Court may assert jurisdiction over a URESA action regardless of the amount of arrearages. Kampschaefer v. Commonwealth, 746 S.W.2d 567, 1988 Ky. App. LEXIS 38 (Ky. Ct. App. 1988).

7.Probate Jurisdiction.

District Courts are vested with exclusive jurisdiction over probate matters, except for adversary proceedings, or those proceedings provided for by statute to be commenced in Circuit Court, and there is no statute providing for an action to determine the validity of a will to be commenced in the Circuit Court. Mullins v. First American Bank, 781 S.W.2d 527, 1989 Ky. App. LEXIS 152 (Ky. Ct. App. 1989).

The District Court’s jurisdiction over probate matters continues until such time as a suit is filed in Circuit Court under a statute authorizing such a filing. Mullins v. First American Bank, 781 S.W.2d 527, 1989 Ky. App. LEXIS 152 (Ky. Ct. App. 1989).

The district court had jurisdiction over a renunciation of a will filed pursuant to KRS 392.080 since (1) the renunciation of a will is a matter involving probate, and (2) the matter was not contested in an adversary proceeding. McElroy v. Taylor, 977 S.W.2d 929, 1998 Ky. LEXIS 131 ( Ky. 1998 ).

Circuit court made the requisite certification of jurisdiction to retain a trust administration case and decide it on the merits because the circuit court made sufficient findings on the record related to its certification of jurisdiction, and the record support its findings; a beneficiary was provided with, and took advantage of, the opportunity to argue the jurisdictional issue both orally at the hearing dates and in his court filings. Beardmore v. JPMorgan Chase Bank, N.A., 2017 Ky. App. LEXIS 60 (Ky. Ct. App. Mar. 31, 2017), review denied, ordered not published, 2018 Ky. LEXIS 204 (Ky. June 6, 2018).

8.—Contest of Will.

Although the validity of a will had been originally contested in a probate proceeding in a county court before the adoption of the judicial article which eliminated the county courts, the Circuit Court had jurisdiction to hear subsequent proceedings in the case as an original action rather than as an appeal, even though the party who filed the action in the Circuit Court failed to comply with certain procedural matters involving that court’s jurisdiction. Smith v. Riherd, 603 S.W.2d 494, 1980 Ky. App. LEXIS 351 (Ky. Ct. App. 1980).

While the District Court exercises supervision and control of guardians and while the guardianship statutes are mandatory and are to be strictly construed, upon the filing of a claim pursuant to KRS 395.510 where acts of mismanagement, fraud, or deception are alleged, the Circuit Court has jurisdiction to settle the estate and adjudicate all claims associated therewith. Priestley v. Priestley, 949 S.W.2d 594, 1997 Ky. LEXIS 66 ( Ky. 1997 ).

9.—Duties of Probate Court.

KRS 394.240 and this section read together, require (1) that all proceedings for the admission to probate of a will or codicil be commenced in the District Court; (2) that the District Court either admit or reject the instrument; and (3) that the District Court retain jurisdiction over the matter until such time as a will contest, or adversary proceeding, is commenced in the Circuit Court. Mullins v. First American Bank, 781 S.W.2d 527, 1989 Ky. App. LEXIS 152 (Ky. Ct. App. 1989).

10.—Admissibility of Codicil.

In an action regarding the admissibility of a codicil to a will, the District Court can and should decide as to the codicil’s validity; thereafter an aggrieved party may, if desired, contest the codicil by following the procedure in KRS 394.240 , and if such an adversarial action is pursued in Circuit Court, the District Court shall retain jurisdiction to entertain any motions or matters not related to the adversarial proceeding, and shall, at the conclusion of the Circuit Court action, proceed with the probate of the estate to its conclusion. Mullins v. First American Bank, 781 S.W.2d 527, 1989 Ky. App. LEXIS 152 (Ky. Ct. App. 1989).

11.—Adversary Proceeding.

The removal of the executor because of conflict of interest due to his indebtedness to the estate was not an adversarial matter beyond the jurisdiction of the District Court where there was no dispute surrounding the existence of the executor’s debts or their measure against the value of his mother’s estate. Morris v. Brien, 712 S.W.2d 347, 1986 Ky. App. LEXIS 1066 (Ky. Ct. App. 1986).

An adversary proceeding is not created by the mere opposition of a party to the admission to probate of a will, and such opposition does not therefore divest the District Court of its jurisdiction or its duty to rule on the merits of the matter before it. Mullins v. First American Bank, 781 S.W.2d 527, 1989 Ky. App. LEXIS 152 (Ky. Ct. App. 1989).

12.Contested Matter.

The District Court lacks jurisdiction to decide a contested matter, or matters provided by statute to be commenced in Circuit Court. Vega v. Kosair Charities Committee, Inc., 832 S.W.2d 895, 1992 Ky. App. LEXIS 141 (Ky. Ct. App. 1992).

In an action to settle a probate estate, the Circuit Court alone had subject matter jurisdiction over all the contested issues presented in the case, and absent any non-contested issues, there was nothing over which the District Court retained any authority to act. Hale v. Moore, 289 S.W.3d 567, 2008 Ky. App. LEXIS 5 (Ky. Ct. App. 2008).

Cited in:

Fischer v. Jeffries, 697 S.W.2d 159, 1985 Ky. App. LEXIS 725 (Ky. Ct. App. 1985); Wood v. Wingfield, 816 S.W.2d 899, 1991 Ky. LEXIS 70 ( Ky. 1991 ); Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ); Abell v. Reynolds, 191 S.W.3d 1, 2006 Ky. App. LEXIS 95 (Ky. Ct. App. 2006).

Opinions of Attorney General.

Since the District Court has exclusive jurisdiction of uncontested probate matters, any papers relative to an uncontested estate in which no final settlement was filed prior to January 2, 1978, should be transferred to the clerk of the District Court of that county and duplicates should be filed with the county clerk. OAG 78-68 .

The District Judge has the authority to take the executor’s bond book or administrator’s bond book from the county clerk’s office and surrender it to the circuit clerk since the District Court has exclusive jurisdiction of uncontested probate matters (wills and settlement of estates). OAG 78-118 .

Since this section vests the exclusive jurisdiction over uncontested probate or estate matters in the District Court, it repeals KRS 424.340 by implication. OAG 78-147 .

The responsibility for advertising for creditors with respect to probate and estate matters rests with the personal representative, especially since the statutes place this task on no public official. OAG 78-147 .

The county attorney would handle civil appeals to Circuit Court in which the county is a party. OAG 78-190 .

Since the District Court has exclusive jurisdiction of uncontested probate matters, and since a contest of probate matters can only be filed in the Circuit Court, if at the time a will and related papers are offered and tendered with the District Court no adversary proceeding in such estate has been instituted in the Circuit Court, the District Court may proceed to exercise its jurisdiction; thus a party cannot come into the District Court objecting to the probate of the will or threatening to file litigation in Circuit Court, since such adversary party will have to file a suit in Circuit Court contesting such proposed will. OAG 79-81 .

A clerk is not responsible in any way to any person who may be misled if a certified copy of an order of appointment is given to an administrator named in the copy who uses it to show his appointment, when actually the estate has been settled: the clerk has no duty to inform the public of the active or inactive status of each estate. OAG 79-136 .

The clerk is not responsible for determining whether an estate has been settled before making certified copies of court orders showing appointment of administrators, executors, etc., in connection with the administration and settlement of estates. OAG 79-136 .

The District Court has jurisdiction in actions under the Uniform Reciprocal Enforcement of Support Act where there is an attempt to enforce support arrearage in excess of $1,500, notwithstanding the provisions of this section because, while this section generally governs the District Court’s jurisdiction, in the specific matter of uniform support actions, KRS 407.100(4) (repealed) and 407.170 (repealed) are controlling so that, regardless of the amount of support money sued for, the District and Circuit Courts have concurrent jurisdiction of such actions. OAG 80-159 ; OAG 80-615 .

A District Court which has found probable cause to believe a felony has been committed lacks jurisdiction to entertain a motion in that criminal proceeding for the release of personal property held as evidence by the Commonwealth. KRS 24A.110 , which defines a District Court’s criminal jurisdiction, provides no such authority. Therefore, a District Court cannot entertain a motion to suppress evidence obtained incident to or in support of a felony charge on the grounds that such evidence was unlawfully obtained. However, there may be cases in which the District Court may be empowered, pursuant to its jurisdiction in civil matters, to entertain an independent civil proceeding for the return of property not subject to forfeiture which is held as evidence. OAG 91-67 .

Research References and Practice Aids

Kentucky Bench & Bar.

Greene, An Old Challenge in a New Dress, Vol. 42, No. 3, July, 1978, Ky. Bench & Bar 16.

Siler, A Calculated Risk: Removal of the Indeterminate Complaint, Vol. 54, No. 4, Winter 1990, Ky. Bench & Bar 19.

Kentucky Law Journal.

Weigand and Farr, Part of the Moving Stream: State Constitutional Law, Sodomy, and Beyond, 81 Ky. L.J. 449 (1992-93).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for District Courts, § 3.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Family Court, § 5.00.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Assault and Battery, Form 35.06.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Guardian and Ward of Minors, § 261.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Mechanic’s Liens, § 153.00.

24A.130. Juvenile jurisdiction.

The juvenile jurisdiction of District Court shall be exclusive in all cases relating to minors in which jurisdiction is not vested by law in some other court.

History. Enact. Acts 1976 (Ex. Sess.), ch. 28, § 12.

NOTES TO DECISIONS

1.Termination Action.

The District Court retains jurisdiction over cases relating to minors after a Circuit Court termination action is filed to the extent that its orders do not conflict with Circuit Court orders regarding custody. Cabinet for Human Resources v. McDonald, 697 S.W.2d 958, 1985 Ky. App. LEXIS 667 (Ky. Ct. App. 1985).

2.Military Reservation.

Federal District Court and not state District Court had jurisdiction over juvenile for crimes committed on Fort Knox military reservation since by KRS 3.030 the Kentucky Legislature has expressly granted jurisdiction to federal courts for matters occurring on the premises of Fort Knox and such statute does not conflict with KRS 610.010 . United States v. Juvenile Male, 939 F.2d 321, 1991 U.S. App. LEXIS 15266 (6th Cir. Ky. 1991 ).

3.Transfer Order.

Entry of a guilty plea did not preclude the consideration of whether a transfer order in a juvenile case was facially invalid, and a waiver rule did not apply to a facially insufficient transfer order. Jackson v. Commonwealth, 363 S.W.3d 11, 2012 Ky. LEXIS 25 ( Ky. 2012 ).

4.Interpersonal Protection Order.

District court lacked subject matter jurisdiction to issue an interpersonal protection order (IPO) where a juvenile was the respondent. Under the unequivocal language of Ky. Rev. Stat. Ann. § 456.030(6)(a), jurisdiction over IPO cases was not vested exclusively between the district court and the circuit court, and thus, under Ky. Rev. Stat. Ann. §§ 24A.130 and 610.010(1), the juvenile court had exclusive jurisdiction over the IPO hearing. Doe v. Ramey, 2020 Ky. App. LEXIS 45 (Ky. Ct. App. Apr. 17, 2020, sub. op., 2020 Ky. App. Unpub. LEXIS 655 (Ky. Ct. App. Apr. 17, 2020).

10.Juvenile Court Jurisdiction.

District court lacked subject matter jurisdiction to issue an interpersonal protection order (IPO) where a juvenile was the respondent. Under the unequivocal language of Ky. Rev. Stat. Ann. § 456.030(6)(a), jurisdiction over IPO cases was not vested exclusively between the district court and the circuit court, and thus, under Ky. Rev. Stat. Ann. §§ 24A.130 and 610.010(1), the juvenile court had exclusive jurisdiction over the IPO hearing. Doe v. Ramey, 2020 Ky. App. LEXIS 45 (Ky. Ct. App. Apr. 17, 2020, sub. op., 2020 Ky. App. Unpub. LEXIS 655 (Ky. Ct. App. Apr. 17, 2020).

Cited in:

Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

Opinions of Attorney General.

This section does not enlarge the usual and historically provided for juvenile session jurisdiction. OAG 78-104 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Bill of Costs (AOC 130), Form 3.07.

24A.140. Services provided by sheriff or city police — Compensation — Alternate arrangements with other law enforcement officers or agencies.

  1. When sessions of District Court are held in:
    1. The county courthouse or other county-owned facility;
    2. Urban-county facilities;
    3. State-owned, leased, or controlled facilities;
    4. Special district facilities; or
    5. Private facilities;

      the sheriff shall be responsible for attending court, keeping order, and providing the same services to District Court as are provided to the Circuit Court.

  2. The sheriff shall be compensated for these services in the same manner and at the same rates as for similar services rendered to the Circuit Court.
  3. When sessions of District Court are held in city facilities, the city police shall be responsible for attending court, keeping order, and providing the same services to District Court as are provided by the sheriff to Circuit Court. Compensation for these services shall be the same as allowed to the sheriff as provided in subsection (2) of this section.
  4. If the Administrative Office of the Courts determines that the provision of services by any law enforcement officer or agency named herein would place an undue burden on such officer or agency, the Administrative Office of the Courts may arrange with any other law enforcement officer or agency in the Commonwealth to provide such services. Compensation shall be as provided in subsection (2) of this section.

History. Enact. Acts 1976 (Ex. Sess.), ch. 28, § 13; 2019 ch. 44, § 1, effective June 27, 2019.

NOTES TO DECISIONS

1.Compensation for Services.

Where members of the city police force provided security services to the District Court, the city was entitled to receive the funds held by the clerk of the Circuit Court. Baskett v. Radcliff, 709 S.W.2d 463, 1986 Ky. App. LEXIS 1131 (Ky. Ct. App. 1986).

Opinions of Attorney General.

If the sheriff’s regular deputy staff is inadequate to meet the total statutory responsibilities of the sheriff, including the service of process and legal papers, he may, in writing, empower the elected constables, as peace officers, to assist him in the serving of process under his supervision and direction, with the fees resulting from the process serving by such constables accruing to the sheriff’s office. OAG 78-66 .

The sheriff is still a fee officer, and he is still entitled to the fee for arrests in misdemeanor cases. OAG 78-162 .

When sessions of District Court are held in city facilities, the city policemen shall be responsible for attending court, keeping order, and providing the same services to District Court as are provided by the sheriff to Circuit Court and compensation for such services shall be the same as allowed to the sheriff. OAG 78-162 .

The sheriff, in serving process and performing other services in District Court, is compensated under existing applicable fee schedules, subject to the contingency of KRS 64.340 that a convicted defendant pays the fees in misdemeanor cases and such contingency is constitutional. OAG 78-193 .

A sheriff in serving a summons is compensated under the existing applicable fee schedule subject to the contingency of KRS 64.340 that a convicted defendant pays the fees in a misdemeanor case. OAG 79-354 .

This section impliedly repealed former KRS 208.370 . OAG 79-636 .

This section was passed in the implementation of the new judicial system, and was designed to provide for the services of sheriffs in all District Court proceedings. OAG 79-636 .

Under this section, KRS 64.090 and KRS 64.092 , the sheriffs of Kentucky are entitled to the payment of fees for service of process and court attendance in connection with services rendered in the juvenile session of District Court, as well as in the regular session of District Court. OAG 79-636 .

The allowance paid to salaried city policemen for serving subpoenas, under this section, should, under KRS 95.740(2) (repealed), be turned over to the city treasury, if the policemen are serving subpoenas in city owned vehicles. OAG 79-655 .

The fees earned by deputies providing security services for the Circuit and District Courts are really fees of the sheriff’s office, and must go into the general official receipts of the sheriff; the sheriff may be given proper credit against his excess fees, where he takes such fees earned by the deputies and applies them on their salaries, but such fees earned by the deputies must first be turned into the regular sheriff’s account. OAG 80-259 .

A county sheriff must execute and make due return on all criminal process lawfully issued by a county trial commissioner (process as authorized by SCR 5.030 ) and placed in the sheriff’s hands or with his lawful deputies. OAG 80-332 .

Except where the District Court or trial commissioner indicates a need for immediacy in serving a warrant, the sheriff must exercise reasonable diligence in executing the process, bearing in mind his other duties, work schedule and convenience. OAG 80-332 .

There is nothing that prohibits a District Court or a trial commissioner from issuing criminal process after regular business hours. OAG 80-332 .

Although this section suggests a responsibility for sheriffs and city police in attending District Court and serving process depending upon who owns the court facility, the court, in issuing criminal process, must keep in mind the geographical jurisdictional limitations of police in second-class cities, which restricts service of process to their city. OAG 81-300 .

Assuming that District Court is being held in one of the facilities mentioned in subdivisions (1)(a) through (1)(e) of this section, the sheriff is responsible for waiting on the court and serving court process; under subsection (2) of this section, the sheriff shall be compensated for such services in the same manner and at the same rates as are provided to the Circuit Court. Thus the sheriff’s fee schedule in KRS 64.090 determines his fees. OAG 82-140 .

There is no statutory basis for compensating the sheriff for transporting misdemeanants from one county to another. OAG 82-140 .

The sheriff’s collection of his fee in a criminal case is conditioned upon the conviction of the defendant and his payment of the fee to the court clerk. OAG 82-140 .

A sheriff is allowed a fee of $2.00 for serving a subpoena on a witness for defendant in a criminal case, pursuant to KRS 64.090 ; the sheriff’s collection of such fee is conditioned upon the conviction of the defendant and his payment of the fee to the court clerk. OAG 83-179 .

Where a county has an arrangement to use a second county’s juvenile detention center to house certain juveniles, it is the responsibility of the sheriff of the first county, or his deputies, under KRS 24A.140 and KRS 70.140 , to transport juveniles who have been arrested by city police in the first county to the detention facility in the second county; it is not the responsibility of the city police who effected the arrest. OAG 81-357 .

Subsection (1) of this section requires the sheriff to provide the “same services to the District Court as are provided to the Circuit Court” which would include serving all necessary criminal process and allied papers; moreover, since the process is issued by the court, KRS 70.070 , governing execution of process by the sheriff, means that the sheriff is required to execute criminal process coming out of the Circuit and District Courts which process is placed in his hands by order or direction of the particular court. OAG 84-37 .

24A.150. Procedure for transfer of coverage for judge formerly under plan established by city of second or third class.

If a person covered by a pension plan established under KRS 26.650 or 26.653 is elected as a District Judge before January 1, 1978, the provisions of subsections (2) to (5) of KRS 61.527 shall be carried out by the governing body of any pension plan applying to District Judges.

History. Enact. Acts 1976 (Ex. Sess.), ch. 23, § 2, effective January 1, 1978.

Compiler’s Notes.

KRS 26.650 and 26.653 referred to in this section have been repealed.

24A.170. Fees and costs for civil cases.

  1. The Supreme Court shall by rule set the filing fees and miscellaneous costs for civil cases filed in the District Court.
  2. The following fee shall be paid directly to the sheriff or other officer serving the process by the party requesting the service, at the time of the request:

Service of process (per process) . . . . . $20.00

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 59, effective January 2, 1978; 1978, ch. 200, § 8, effective June 17, 1978; 1982, ch. 141, § 137, effective July 1, 1982; 1982, ch. 159, § 3, effective July 15, 1982; 1982, ch. 266, § 2, effective July 15, 1982; 1982, ch. 445, § 35, effective July 1, 1982; 1990, ch. 234, § 6, effective July 13, 1990; 1994, ch. 134, § 5, effective July 1, 1994; 1996, ch. 248, § 5, effective July 15, 1996.

Legislative Research Commission Notes.

This section was amended in 1982 Acts Chapter 445, which contains the following language in Section 45 of that Act: “This Act shall become effective on July 1, 1982.” The Ky. Constitution, in Section 55, requires that a reason be set forth for the emergency. However, no reason is set forth in this Act. The effective date for 1982 Acts with no emergency provision was July 15, 1982.

Opinions of Attorney General.

The Commonwealth, except for the provisions of KRS 416.620 , pertaining to proceedings for eminent domain, is exempt from paying costs, although it may, pursuant to KRS 453.010 , pay costs when such costs are approved and allowed by the judge of the court in which the case was filed. OAG 78-343 .

If the sheriff must make a return on the item or document, he is entitled to a fee for service, regardless of whether the process is served alone or in a group with other process, but if no return is required on the document (i.e., a pleading) he may not charge the fee. OAG 79-510 .

The word “process” as used in KRS 23A.200 and this section does not refer to every legal document, but is a technical term which refers to documents, such as summonses, by which the court may command a person to appear in an action or before the court, or the means, such as a temporary restraining order, whereby the court compels compliance with its demands. OAG 79-510 .

The advance fees required by KRS 23A.200 and this section would have to be paid by an urban county government in civil actions to which it was a party. OAG 83-186 .

If a sheriff refuses to serve process on the ground that the requester owes him for an unrelated fee, the sheriff would be in violation of KRS 70.070 and would be liable on his official bond for such neglect of duty; he would also be subject to the court’s holding him in contempt, since the illegal failure to serve summons would constitute an interference with the proper exercise of the court’s judicial functions. OAG 84-114 .

A sheriff may not refuse to serve a properly issued process for the requester for the reason that the requester owes him a fee bill involving an unrelated matter. OAG 84-114 .

A sheriff can legally refuse to serve or attempt to serve a civil summons where he has not yet been paid to serve it. OAG 84-114 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, § 31.30.

24A.175. Court costs for criminal cases in District Court — Payment required — Exceptions — Treatment of minor defendant.

  1. Court costs for a criminal case in the District Court shall be one hundred dollars ($100), regardless of whether the offense is one for which prepayment is permitted.
  2. There shall be no court costs for a parking citation when:
    1. The fine is paid to the clerk before the trial date in the same manner as provided for speeding citations under KRS 189.394(3); and
    2. The citation does not involve parking in a fire lane or blocking the traveled portion of the highway.
  3. The taxation of court costs against a defendant, upon conviction in a case, including persons sentenced to state traffic school as provided under KRS 186.574 , shall be mandatory and shall not be subject to probation, suspension, proration, deduction, or other form of nonimposition in the terms of a plea bargain or otherwise, unless the court finds that the defendant is a poor person as defined by KRS 453.190(2) and that he or she is unable to pay court costs and will be unable to pay the court costs in the foreseeable future.
  4. If the court finds that the defendant does not meet the standard articulated in subsection (3) of this section and that the defendant is nonetheless unable to pay the full amount of the court costs, fees, or fines at the time of sentencing, then the court may establish an installment payment plan in accordance with KRS 534.020 .
  5. Notwithstanding any other provision to the contrary, the court shall not adjudicate a traffic violation involving a defendant who is under the age of eighteen (18), unless the person that assumed liability of the minor under the provisions of KRS 186. 590 is present. This subsection shall not apply to emancipated minors.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 60, effective January 2, 1978; 1979 (Ex. Sess.), ch. 7, § 1, effective July 1, 1979; 1979 (Ex. Sess.), ch. 20, § 1, effective May 12, 1979; 1980, ch. 268, § 1, effective July 15, 1980; 1982, ch. 235, § 19, effective July 15, 1982; 1982, ch. 266, § 3, effective July 15, 1982; 1984, ch. 141, § 6, effective July 13, 1984; 1984, ch. 321, § 4, effective July 13, 1984; 1984, ch. 415, § 10, effective July 13, 1984; 1996, ch. 198, § 18, effective October 1, 1996; 1998, ch. 606, § 159, effective July 15, 1998; 2000, ch. 328, § 2, effective July 14, 2000; 2000, ch. 512, § 12, effective July 14, 2000; 2002, ch. 183, § 4, effective August 1, 2002; 2014, ch. 81, § 2, effective July 15, 2014; 2017 ch. 158, § 3, effective June 29, 2017.

Legislative Research Commission Notes.

(7/15/2014). 2014 Ky. Acts ch. 81, sec. 3 provided that the amendments made to this statute in Section 2 of that Act shall be known as the “Denzel Steward Act of 2014.”

NOTES TO DECISIONS

1.Compensation for Services.

Where members of the city police force provided security services to the District Court, the city was entitled to receive the funds held by the clerk of the Circuit Court. Baskett v. Radcliff, 709 S.W.2d 463, 1986 Ky. App. LEXIS 1131 (Ky. Ct. App. 1986).

Where the sheriff did not provide any of the services to the District Court which would give rise to his entitlement to the fees established in former subsection (7) of this section and subdivision (7) of KRS 64.092 , the trial court properly denied the sheriff’s claim to the sums being held for such purposes by the clerk of the Circuit Court. Baskett v. Radcliff, 709 S.W.2d 463, 1986 Ky. App. LEXIS 1131 (Ky. Ct. App. 1986).

Cited in:

Wells v. Kentucky Local Correctional Facilities Constr. Authority, 730 S.W.2d 951, 1987 Ky. App. LEXIS 499 (Ky. Ct. App. 1987); Doyle v. Judicial Retirement & Removal Comm’n, 885 S.W.2d 917, 1994 Ky. LEXIS 86 ( Ky. 1994 ).

Opinions of Attorney General.

As between legislation of a broad and general nature on one hand and legislation dealing minutely with a specific matter on the other hand, the specific will prevail over the general, and, accordingly, the specific prohibition of KRS 189.990 against imposing of costs in parking violations prevails over the generality of this section, which purports to require payment of costs in all criminal prosecutions upon conviction. OAG 78-328 .

Where two statutes enacted at the same session are destructively repugnant, the law last enacted must be regarded as the final expression of the legislative will and permitted to prevail; since amended KRS 189.990 (1) and this section are destructively repugnant, KRS 189.990 , as the last enacted, prevails. OAG 78-328 .

A reasonable construction of former subsection (5) of this section means that the jail money paid by the circuit clerk to the county treasurer should be considered for expenditure, during the fiscal year received, through the budget item or items established for county jail operations, since Const., § 157 and KRS Chapter 68 contemplate a pay-as-you-go budget and no fiscal court can deliberately budget surpluses. OAG 80-448 .

It is the responsibility of the fiscal court to see that any county jail money, arising out of this section, which is actually surplus at the end of a particular fiscal year is either placed in a reserve fund for construction, or budgeted for expenditure for noncapital jail purposes for subsequent fiscal years, depending upon the necessary operational expenses of the county jail; in any event, this section requires that the so-called jail money be spent for the sole purpose of defraying the costs of operation of the county jail. OAG 80-448 .

The money coming into the county treasury pursuant to former subsection (5) of this section may be budgeted or earmarked by way of a special reserve fund for construction purposes, which may be maintained and carried over for the number of fiscal years necessary, provided that the fiscal court has by order or resolution committed the county to a definite capital project, supported by a bond issue or holding corporation action on the part of fiscal court. OAG 80-448 .

The phrase “costs of operation of the county jail” in former subsection (5) of this section is very broad; under ordinary usage of language the phrase is broad enough to embrace the use of the money for new construction of a jail or construction of a new addition. OAG 80-448 .

Former subsection (5) of this section was enacted to allay a shortage of funding for the operation of jails and housing of prisoners and the funds allotted hereunder were intended to be used to defray all costs associated with performing the duty of operating a jail. OAG 80-535 .

The funds allotted pursuant to former subsection (5) of this section may be used for capital expenditures in connection with constructing a new jail or renovating an old one. OAG 80-535 .

The money allotted under former subsection (5) of this section may be used for juvenile detention costs such as the payment of per diem fees to families who keep juveniles or to the county juvenile detention center for keeping out of county juveniles insofar as these juveniles could be housed and kept in the county jail if there was one. OAG 80-535 .

The money allotted under former subsection (5) of this section may be used to pay the charges made to a county which had no jail by other counties that house and keep its prisoners in their jails. OAG 80-535 .

Where prisoners that would have been housed in a county jail, if it had one, were instead housed in a city jail, the city could charge the county on a cost-sharing percentage or per diem basis for housing the county prisoners, just as one county may charge another for performing like services and the county jail fund could be used to pay this charge. OAG 80-535 .

Where there is a jail, the funds collected under former subsection (5) of this section may be used to defray the costs of running the physical facility and of keeping and housing prisoners therein and, where the county does not have a jail, the funds may be used to cover the costs of providing alternative methods of housing and keeping prisoners. OAG 80-535 .

Payment of a salary to a jailer during the closing of the jail for capital improvements is legal where the jailer is putting in at least a normal five-day work week supervising the capital improvements on the jail and preparing himself to run the jail once it reopens. OAG 80-661 .

Where a new jailer supervised capital improvements on jail and, while the jail was closed for such improvements, also took applications and interviewed prospective deputies and worked on a daily basis with state officials and prepared a procedures manual which the county judge/executive had requested that he prepare, such activities related exclusively to the county jail operation and the phrase “operation of the county jail” in former subsection (5) of this section is broad enough to cover the period during which the jail was being repaired and the new jailer was preparing himself to adequately perform as jailer once the jail reopened; moreover, the repair of the jail is vital to its effective use as a place of detention and thus the repair period must logically fall within the ambit of jail operations, therefore, the regular jailer’s salary may be paid to the new jailer during said period out of the cost money described in former subsection (5) of this section. OAG 80-661 .

The money going to the counties from this section is for the sole purpose of defraying the costs of operation of the county jail. Such money may be spent to fund or partially fund the salary of a jail matron, which is properly a part of the costs of operating a county jail, subject to proper budgeting procedure under KRS Ch. 68. OAG 82-137 .

Although the two 1982 amendments to this section are generally similar in that they involve court cost increases, there is no express nor implied basis for repeal of one by the other; thus effect must be given to both. OAG 82-208 .

The 1982 amendment by ch. 235 provides for the $5.00 increase of costs listed under subdivisions (1)(a) and (b) of this section in order to help in the funding of county jails while Acts 1982, ch. 266, which increases the same fees by $7.00, is an “Act relating to fees and costs for utilizing state services” (performed by state employees or officers); the two amendments, in increasing such court costs, had two different purposes in mind and for that reason they cannot be considered in duplication of each other. OAG 82-208 .

There are no apparent conflicts between the two 1982 amendments to this section, and thus the $5.00 increase of ch. 235 and the $7.00 increase of ch. 266 must be added together for a total of $12.00 increase of the court costs dealt with in subdivisions (1)(a) and (b) of this section. OAG 82-208 .

Since former subsections (5) and (6) of this section had two different purposes in mind, one being jail operational costs, the other being construction costs, they are not in duplication of each other. OAG 82-314 .

The principle that the specific shall prevail over the general means that former subsection (6) of this section must be recognized as being exclusive of former subsection (5) of this section, since it deals with the specific expense of construction costs. OAG 82-488 .

The mandate of former subsection (5) of this section was such that the fiscal court was restricted to using that money only for county jail operational costs. None of those funds can be reserved for some other purpose, such as jail construction costs. OAG 82-488 .

Former subsection (6) money was to be used only for jail construction, while former subsection (5) money was to be used by the fiscal court for jail operational costs that do not include construction costs. When those subsections are read in pari materia, the emerging intent is that operational costs may cover any jail expense except construction costs; in that manner, the two subsections are a part of a connected system. OAG 82-488 .

24A.176. Additional costs imposed in criminal cases — Funds distributed to local governments and counties — Funds used for police, jails, and transport prisoners.

  1. For the purposes of this section:
    1. “Local government” means a city, county, charter county, urban-county, or consolidated local government; and
    2. “Police department” means a police department created by a local government which employs one (1) or more officers certified pursuant to KRS 15.380 to 15.404 .
  2. In criminal cases a fee of twenty dollars ($20) shall be added to the costs imposed by KRS 24A.175 that the defendant is required to pay.
  3. The circuit clerk shall pay the funds from fees collected under this section to the Finance and Administration Cabinet pursuant to KRS 24A.175 for distribution as provided in subsection (5) of this section to local governments with police departments or local governments that contract for police services, and to counties with fiscal responsibilities for jails or the transporting of prisoners.
  4. All funds distributed to local governments shall be used for payment of expenses for operation of the local government’s police department or contracted police services. All funds distributed to counties with fiscal responsibilities for jails or the transporting of prisoners shall be used for the payment of costs associated with the housing or transporting of prisoners.
  5. Payments shall be distributed quarterly by the Finance and Administration Cabinet beginning October 1, 2004, as follows:
    1. Thirty percent (30%) of the total shall be distributed equally to all local governments with police departments or local governments that contract for police services;
    2. Fifty percent (50%) of the total shall be distributed to local governments with police departments on a per capita basis according to the number of certified police officers employed by the police department on July 1 each year or providing services to the local government pursuant to a contract on July 1 of each year. For purposes of this subsection, each local government that contracts for police services shall be considered to employ one (1) police officer for each sixty thousand dollars ($60,000) it expends during each fiscal year for police services under a written contract; and
    3. Twenty percent (20%) of the total shall be distributed equally to counties with fiscal responsibilities for jails or the transporting of prisoners.
  6. On or before August 1 of each year, the Justice and Public Safety Cabinet shall certify to the Finance and Administration Cabinet the number of certified police officers employed by each local government.
  7. On or before August 1 of each year, each local government contracting for police services shall certify to the Finance and Administration Cabinet the amount of money expended for police services under a written contract during the previous fiscal year.
  8. The Finance and Administration Cabinet shall promulgate administrative regulations pursuant to KRS Chapter 13A necessary for the administration of this section.

History. Enact. Acts 2004, ch. 78, § 2, effective April 6, 2004; 2007, ch. 85, § 109, effective June 26, 2007.

24A.1765. Additional fees for criminal cases — Allocation to general fund and telephonic behavioral health jail triage system.

In addition to the twenty dollar ($20) fee created by KRS 24A.176 , in criminal cases a ten dollar ($10) fee shall be added to the costs imposed by KRS 24A.175 that the defendant is required to pay. The first five dollars ($5) of each fee collected under this section shall be placed into the general fund, and the remainder of the fee shall be allocated to the Cabinet for Health and Family Services for the implementation and operation of a telephonic behavioral health jail triage system as provided in KRS 210.365 and 441.048 .

History. Enact. Acts 2004, ch. 137, § 5, effective July 13, 2004; 2005, ch. 99, § 98, effective June 20, 2005; 2008, ch. 158, § 4, effective July 1, 2008.

24A.177. Fees for criminal cases.

In criminal cases, the following fees shall be charged by the circuit clerk and paid to the clerk at the time the corresponding services are requested:

  1. Preparing an attestation  . . . . .  $0.50
  2. Preparing a certification  . . . . .  $5.00
  3. Preparing a copy of a document (per page)  . . . . .  $0.25.

History. Enact. Acts 2002, ch. 183, § 5, effective August 1, 2002.

24A.178. Additional fee for sex crime, stalking, or related inchoate offenses.

  1. In addition to fees created by KRS 24A.175 , 24A.176 , and 24A.176 5, an administrative fee of thirty dollars ($30) shall be added to the costs that the defendant is required to pay for the following crimes:
    1. A sex crime, meaning an offense described in:
      1. KRS Chapter 510;
      2. KRS 530.020 ;
      3. KRS 530.064(1)(a);
      4. KRS 531.310 ; and
      5. KRS 531.320 ;
    2. Stalking, meaning conduct prohibited under KRS 508.140 and 508.150 ; and
    3. A criminal attempt, conspiracy, facilitation, or solicitation to commit the crimes set forth in this subsection.
  2. The first one dollar and fifty cents ($1.50) of each fee collected under this section shall be placed into the general fund, and the remainder of the fee shall be allocated by the clerk of the court on a quarterly basis to the address protection program fund established in KRS 14.260 to be used solely to establish, operate, and maintain the confidential address protection program established in KRS 14.260 .
  3. The court may waive all or any portion of the fee required by this section if the court finds that a person subject to the surcharge is indigent or financially unable to pay all or any portion of the surcharge. The court may waive only the portion of the surcharge that the court finds the person is financially unable to pay.

HISTORY: 2015 ch. 101, § 2, effective June 24, 2015.

24A.179. Additional fee for expenses of Kentucky Internet Crimes Against Children Task Force.

In addition to the twenty dollar ($20) fee created by KRS 24A.176 and the ten dollar ($10) fee created by KRS 24A.176 5, a ten dollar ($10) fee shall be added in misdemeanor cases to the costs imposed by KRS 24A.175 . The fee collected under this section shall be allocated to the Department of Kentucky State Police for the training, salaries, and equipment of the Kentucky Internet Crimes Against Children Task Force.

HISTORY: 2015 ch. 122, § 2, effective June 24, 2015.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 4, (2) at 1100.

24A.180. Disposition of District Court fees and costs.

  1. Except as provided in subsection (2) of this section all fees and costs collected pursuant to KRS 24A.170(1) shall be deposited in the general fund of the State Treasury.
  2. Fees consisting of reimbursement for incidental direct outlays, including but not limited to postage and legal advertising, may be retained by the clerk and expended for these purposes in accordance with relevant directives of the Administrative Office of the Courts.
  3. Additional costs in District Court civil cases authorized by subsection (2) of KRS 24A.170 shall be paid to the sheriff or other officer serving the process.
  4. Filing fees in civil actions shall be recoverable as costs.
  5. No later than the seventh working day of each month the circuit clerk shall pay the funds from each court cost collected under KRS 24A.175 to the court cost distribution fund established in KRS 42.320 and report to the Finance and Administration Cabinet and the Administrative Office of the Courts the amounts deposited into the court cost distribution fund.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 61, effective January 2, 1978; 1984, ch. 321, § 5, effective July 13, 1984; 1994, ch. 134, § 6, effective July 1, 1994; 2002, ch. 183, § 6, effective August 1, 2002.

24A.185. Assessment by the fiscal court of additional fees and costs.

A fiscal court, by ordinance, may assess additional fees and costs for the purpose of paying expenses for courthouses, bonds related to them, and administration expenses of the District Court as follows:

  1. In all traffic offense cases, a fee of ten dollars ($10) may be added to the court costs;
  2. In probate cases, a filing fee of ten dollars ($10) may be added to each filing fee;
  3. In misdemeanor cases, a cost of twenty dollars ($20) may be added to the court costs;
  4. In small claim cases, a fee of ten dollars ($10) may be added to all filing fees; and
  5. In civil cases, a fee of ten dollars ($10) may be added to all filing fees.

History. Enact. Acts 2001, ch. 54, § 3, effective March 15, 2001.

Compiler’s Notes.

Section 5 of Chapter 54 of the Acts of the 2001 Regular Session read:

“The provisions of Section 1 to 4 of this Act shall supersede and prevail over any conflicting provisions of the 2000 Kentucky Acts Chapter 524 (House Joint Resolution 84), the 2000-2002 Judicial Branch Budget Memorandum.”

NOTES TO DECISIONS

1.Expenditure of Funds.

Argument relating to a fiscal court’s expenditure of funds collected via a court fee tax were rejected because there was no allegation of the improper use of the funds, the fiscal court had the discretion to use the funds for administration expenses and courthouse expenses which were not necessarily limited to the courthouse in Alexandria, Kentucky, and the issue was better left to the required audits of county expenditures. Nolan v. Campbell County Fiscal Court, 2010 Ky. App. LEXIS 217 (Ky. Ct. App. Nov. 24, 2010).

24A.190. Definitions for KRS 24A.191 to 24A.193. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976 (Ex. Sess.), ch. 16, § 1) was repealed by Acts 2004, ch. 78, § 4.

24A.191. Computation of net court revenue and base court revenue. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976 (Ex. Sess.), ch. 16, § 2; 1979 (Ex. Sess.), ch. 8, § 1, effective May 12, 1979; 1982, ch. 385, § 13, effective July 1, 1982) was repealed by Acts 2004, ch. 78, § 4.

24A.192. Return to cities and counties of net court revenue. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976 (Ex. Sess.), ch. 16, § 3) was repealed by Acts 2004, ch. 78, § 4.

24A.193. Authority for administrative regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976 (Ex. Sess.), ch. 16, § 4; 1994, ch. 508, § 6, effective July 15, 1994) was repealed by Acts 2004, ch. 78, § 4.

24A.195. Reporting of convictions under KRS 186.560.

All courts shall report convictions under KRS 186.560 to the Transportation Cabinet.

History. Enact. Acts 1986, ch. 434, § 2, effective July 15, 1986.

24A.197. Position of domestic relations commissioner abolished in family court.

In any judicial district where a family court is established or has been established, the position of domestic relations commissioner is abolished, and no commissioner shall be appointed to hear or determine any matter within the jurisdiction of the family court.

History. Enact. Acts 2002, ch. 86, § 2, effective January 1, 2003.

Small Claims

24A.200. Purpose.

The purpose of KRS 24A.200 to 24A.360 is to improve the administration of justice in small noncriminal cases, and make the judicial system more available and comprehensible to the public; to simplify practice and procedure in the commencement, handling, and trial of such cases in order that plaintiffs may bring actions in their own behalf, and defendants may participate actively in the proceedings rather than default; to provide an efficient and inexpensive forum with the objective of dispensing justice in a speedy manner; and generally to promote the confidence of the public in the overall judicial system by providing a forum for small claims.

History. Enact. Acts 1976 (Ex. Sess.), ch. 9, § 2.

NOTES TO DECISIONS

1.Appeals.

The overriding thrust of this section is efficiency, speed, and understandability, and it is that thrust which gives rise to the ten-day limit on appeals rather than the usual 30-day limit. Hibberd v. Neil Huffman Datsun, Inc., 791 S.W.2d 726, 1990 Ky. App. LEXIS 87 (Ky. Ct. App. 1990).

2.Simplified Procedure.

Seller involved in a small claims action against the buyer, who sued it when the generator that the buyer purchased from the seller soon caught fire, could not show that a presumption of the Kentucky Products Liability Act (Act), contained in KRS 411.310(2), applied. Since a small claims action was involved, that Act did not apply and, indeed, the simplified small claims procedure set forth in statutes such as KRS 24A.200 and KRS 24A.300(2) governed such actions. Northern Tool & Equip., Inc. v. Durbin, 392 S.W.3d 424, 2013 Ky. App. LEXIS 18 (Ky. Ct. App. 2013).

Cited:

Miller v. Jones, 658 S.W.2d 888, 1983 Ky. App. LEXIS 348 (Ky. Ct. App. 1983); Baker v. Ryan, 967 S.W.2d 591, 1997 Ky. App. LEXIS 90 (Ky. Ct. App. 1997).

Opinions of Attorney General.

Where a county fiscal court ordered the county ambulance service, a service neither funded nor regulated by the court, but the majority of whose employees are paid through CETA, to not take individuals failing to pay their ambulance bills to small claims court, the fiscal court order is a nullity as an attempted usurpation of the power of the legislature to define jurisdiction of and access to the Small Claims Court. OAG 79-194 .

Research References and Practice Aids

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April, 1977, Ky. Bench & Bar 13.

Greene, An Old Challenge in a New Dress, Vol. 42, No. 3, July, 1978 Ky. Bench & B. 16.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Small Claims Court, § 2.00.

24A.210. Definitions.

As used in KRS 24A.200 to 24A.360 , unless the context otherwise requires:

  1. “Division” means the small claims division of District Court;
  2. “Party” means any person, natural or otherwise, who has been a party to the transaction in dispute;
  3. “Clerk” means the clerk of the Circuit Court;
  4. “Judge” means the judge or trial commissioner of District Court;
  5. “Where the defendant resides” means the county wherein the defendant has his principal place of residence or, in the case of a corporate defendant, the county of the corporation headquarters;
  6. “Where the defendant is doing business” includes counties where the defendant operates a place of business or dispatches sales representatives for the purpose of selling a product or service.

History. Enact. Acts 1976 (Ex. Sess.), ch. 9, § 3.

Opinions of Attorney General.

An attorney-at-law may but is not required to appear in Small Claims Court on behalf of a corporation; however, any person appearing for a corporation in the small claims division of the District Court who is not an attorney must be an officer of, or regularly employed in a managerial capacity by, the corporation which is a party to the litigation. OAG 80-572 .

24A.220. Establishment of small claims division.

A small claims division of each District Court shall be established by the first Monday of January, 1978.

History. Enact. Acts 1976 (Ex. Sess.), ch. 9, § 4.

24A.230. Jurisdiction — Authority.

  1. The small claims division shall have jurisdiction, concurrent with that of the District Court, in all civil actions, other than libel, slander, alienation of affections, malicious prosecution and abuse of process actions, when the amount of money or damages or the value of the personal property claimed does not exceed two thousand five hundred dollars ($2,500) exclusive of interest and costs.
  2. The division may also be used in civil matters when the plaintiff seeks to disaffirm, avoid, or rescind a contract or agreement for the purchase of goods or services not in excess of two thousand five hundred dollars ($2,500) exclusive of interest and costs.
  3. The division shall have authority to grant appropriate relief, except no prejudgment actions for attachment, garnishment, replevin or other provisional remedy may be filed in the division.

History. Enact. Acts 1976, (Ex. Sess.), ch. 9, § 5; 1980, ch. 36, § 1, effective July 15, 1980; 1988, ch. 137, § 1, effective July 15, 1988; 2011, ch. 91, § 2, effective June 8, 2011.

Legislative Research Commission Notes.

(6/8/2011). 2011 Ky. Acts ch. 91, sec. 4, provides that “any case which has been filed in a Circuit Court or District Court prior to the effective date of this Act (June 8, 2011) and the change in jurisdictional amounts (made by 2011 Ky. Acts ch. 91) shall remain in the court in which the case was originally filed, until the disposition of the case.”

NOTES TO DECISIONS

Cited:

Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ); Commonwealth v. Reneer, 734 S.W.2d 794, 1987 Ky. LEXIS 232 ( Ky. 1987 ); Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

Opinions of Attorney General.

While one may not break up one’s cause of action so as to attain the $500 maximum necessary for a small claim, one could sue on multiple claims of less than $500, one at a time, and need not combine them even though all are against one defendant. OAG 79-36 .

As a bank must, clearly, be engaged in the business of lending money at interest, it is precluded from having an action brought in its name to collect on delinquent accounts, such action being in the furtherance of that business. OAG 79-94 .

A city may bring a personal action against a taxpayer in the small claims division of District Court to enforce the collection of delinquent municipal property taxes so long as the amount sought does not exceed $1,000; the limitation on the number of actions that may be brought by one party per year (25) would also apply to cities. OAG 83-413 .

Research References and Practice Aids

Kentucky Bench & Bar.

Greene, An Old Challenge in a New Dress, Vol. 42, No. 3, July 1978, Ky. Bench & Bar 16.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Small Claims Court, § 2.00.

24A.240. Appearance of attorneys — Actions prohibited — Personal representatives as parties.

  1. The appearance of an attorney-at-law on behalf of any party is permitted but not required.
  2. No party may file an assigned claim or a class action in the division.
  3. No person, firm, partnership, association, or corporation engaged, either primarily or secondarily, in the business of lending money at interest, nor any collection agency or collection agent, may bring an action in the division in furtherance of their business.
  4. Notwithstanding any other provision of this section, an executor or administrator of a decedent’s estate, a guardian, a trustee or a conservator may be a party in the division.

History. Enact. Acts 1976 (Ex. Sess.), ch. 9, § 6.

Opinions of Attorney General.

As a bank must, clearly, be engaged in the business of lending money at interest, it is precluded from having an action brought in its name to collect on delinquent accounts, such action being in the furtherance of that business. OAG 79-94 .

An attorney at law may but is not required to appear in Small Claims Court on behalf of a corporation; however, any person appearing for a corporation in the small claims division of the District Court who is not an attorney must be an officer of, or regularly employed in a managerial capacity by, the corporation which is a party to the litigation. OAG 80-572 .

A city may bring a personal action against a taxpayer in the small claims division of district court to enforce the collection of delinquent municipal property taxes so long as the amount sought does not exceed $1,000; the limitation on the number of actions that may be brought by one party per year (25) would also apply to cities. OAG 83-413 .

A collection agency can advance the small claims court costs for filing fees, along with the proper papers, to its clients without violating the law, so long as the action was not filed in the collection agency’s name and so long as the collection agency did not make any court appearance for its client. OAG 83-420 .

24A.250. Limitation on number of claims filed by party during calendar year — Exception.

  1. No party shall file more than twenty-five (25) claims in any one (1) calendar year in the small claims division of any District Court in the Commonwealth. Any business engaged in trade or commerce shall be entitled to the maximum number of claims allowed under this section for each established location in the district that has been engaged in trade or commerce for at least six (6) months.
  2. Any party who files a claim in the division shall sign an affidavit with the clerk at the time of filing the claim stating that he has not brought more than the maximum number of claims allowed under subsection (1) of this section.
  3. If any party files a claim in excess of the maximum number of claims allowed, that claim shall be dismissed without prejudice at the cost of the plaintiff.
  4. The limitation on the number of claims and the other requirements of this section shall not apply to claims brought by city, county, or urban-county governments.

History. Enact. Acts 1976 (Ex. Sess.), ch. 9, § 7; 1990, ch. 53, § 1, effective July 13, 1990.

Research References and Practice Aids

Kentucky Bench & Bar.

Greene, An Old Challenge in a New Dress, Vol. 42, No. 3, July 1978, Ky. Bench & Bar 16.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Small Claims Court, § 2.00.

24A.260. Commencement of action.

  1. The plaintiff shall commence an action in the small claims division by filing a claim on a form provided by the clerk.
  2. The plaintiff may bring an action in the small claims division in the judicial district where the party defendant or his agent resides or is doing business.
  3. Nothing in this section shall limit the exercise of jurisdiction on any other basis authorized in the Kentucky Revised Statutes or in the Rules of Civil Procedure.

History. Enact. Acts 1976 (Ex. Sess.), ch. 9, § 8; 1982, ch. 124, § 1, effective July 15, 1982.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Notice of Transfer of Action (AOC 122), Form 2.07.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Venue and Change of Venue, § 38.00.

24A.270. Filing fee.

The filing fee in the small claims division of the District Court shall be the same as the filing fee for claims of five hundred dollars ($500) or less filed in the District Court, except where personal service is not required pursuant to KRS 24A.280(2), the sheriff’s fee and mileage cost shall not be charged.

History. Enact. Acts 1976 (Ex. Sess.), ch. 9, § 9; 1980, ch. 36, § 2, effective July 15, 1980.

Legislative Research Commission Notes.

Although KRS 24A.270 is included in Acts 1980, ch. 36, § 2, the proposed change was deleted by committee amendment.

NOTES TO DECISIONS

Cited:

Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ); Commonwealth v. Reneer, 734 S.W.2d 794, 1987 Ky. LEXIS 232 ( Ky. 1987 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Greene, An Old Challenge in a New Dress, Vol. 42, No. 3, July 1978, Ky. Bench & Bar 16.

24A.280. Time for hearing — Service of notice on defendant — Continuances.

  1. The court shall set a time for hearing. The hearing time set shall be not less than twenty (20) days nor more than forty (40) days after service of process.
  2. The clerk shall notify the defendant of the claim and his right to appear by sending the defendant a copy of the claim and a summons directing the defendant to appear at the time set for hearing and informing the defendant that if he fails to appear, judgment may be entered against him. The mode of service shall be as authorized in the Kentucky Revised Statutes or in the Rules of Civil Procedure.
  3. To promote quick settlement of small claims, the division shall grant continuances only where reasons of fairness and justice so require.

History. Enact. Acts 1976 (Ex. Sess.), ch. 9, § 10; 1980, ch. 114, § 3, effective July 15, 1980; 1982, ch. 124, § 2, effective July 15, 1982.

Research References and Practice Aids

Kentucky Bench & Bar.

Greene, An Old Challenge in a New Dress, Vol. 42, No. 3, July 1978, Ky. Bench & Bar 16.

Wiederstein, Firm Hearing and Trial Dates: A Partial Answer to Reducing Delay in the Courts, Vol. 70, No. 3, May 2006, Ky. Bench & Bar 18.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Notice of Transfer of Action (AOC 122), Form 2.07.

24A.290. Counterclaim — Notice.

The defendant may file with the clerk a counterclaim against the plaintiff in an amount not in excess of two thousand five hundred dollars ($2,500) exclusive of interest and costs, if the counterclaim arose out of the same transaction or occurrence that is the subject matter of the plaintiff’s claim, and if the counterclaim does not require for its adjudication the presence of third parties over whom the division cannot acquire jurisdiction. Any counterclaim shall be filed with the clerk, and a copy delivered to the plaintiff at least five (5) days prior to the time of the hearing. If the defendant’s counterclaim is in excess of the jurisdictional limits of the division, then the provisions of KRS 24A.310(1) shall apply.

History. Enact. Acts 1976 (Ex. Sess.), ch. 9, § 11; 1980, ch. 36, § 3, effective July 15, 1980; 1990, ch. 463, § 1, effective July 13, 1990; 2011, ch. 91, § 3, effective June 8, 2011.

Legislative Research Commission Notes.

(6/8/2011). 2011 Ky. Acts ch. 91, sec. 4, provides that “any case which has been filed in a Circuit Court or District Court prior to the effective date of this Act (June 8, 2011) and the change in jurisdictional amounts (made by 2011 Ky. Acts ch. 91) shall remain in the court in which the case was originally filed, until the disposition of the case.”

Research References and Practice Aids

Kentucky Bench & Bar.

Greene, An Old Challenge in a New Dress, Vol. 42, No. 3, July 1978, Ky. Bench & Bar 16.

24A.300. Pleadings — Forms — Pretrial discovery not permitted.

  1. No formal pleadings other than the claim and notice, and the counterclaim and notice, if appropriate, shall be required in the division.
  2. All forms provided in KRS 24A.200 to 24A.360 shall be of a simplified, nontechnical form.
  3. There shall be no pretrial discovery in the small claims division of the District Court.

History. Enact. Acts 1976 (Ex. Sess.), ch. 9, § 12.

NOTES TO DECISIONS

1.Simplified Procedure.

Seller involved in a small claims action against the buyer, who sued it when the generator that the buyer purchased from the seller soon caught fire, could not show that a presumption of the Kentucky Products Liability Act (Act), contained in KRS 411.310(2), applied. Since a small claims action was involved, that Act did not apply and, indeed, the simplified small claims procedure set forth in statutes such as KRS 24A.200 and KRS 24A.300(2) governed such actions. Northern Tool & Equip., Inc. v. Durbin, 392 S.W.3d 424, 2013 Ky. App. LEXIS 18 (Ky. Ct. App. 2013).

24A.310. Removal of action to District or Circuit Court — Transfer of action to small claims division.

  1. An action shall be removed from the small claims division to the regular docket of District or Circuit Court as appropriate whenever the defendant’s counterclaim exceeds the jurisdictional limit of the division or the District Court.
  2. An action shall be removed from the division to the District Court if a party defendant would otherwise have a right to a jury trial and gives notice to the division requesting a jury trial as provided in KRS 24A.320(2).
  3. An action may be removed from the division to the District Court if the judge, in his discretion, deems the action too complex for the simplified procedure of the division.
  4. An action originally filed in the District or Circuit Courts may be transferred to the small claims division on motion of the defendant if the claim is within the jurisdictional limit of, and otherwise could have been brought originally in, the division, unless the plaintiff demands a jury trial. No action transferred to the division shall be counted in the maximum number of claims that the plaintiff may bring under KRS 24A.250(1).

History. Enact. Acts 1976 (Ex. Sess.), ch. 9, § 13.

NOTES TO DECISIONS

Cited:

Miller v. Jones, 658 S.W.2d 888, 1983 Ky. App. LEXIS 348 (Ky. Ct. App. 1983).

Research References and Practice Aids

Kentucky Bench & Bar.

Greene, An Old Challenge in a New Dress, Vol. 42, No. 3, July 1978, Ky. Bench & Bar 16.

24A.320. Waiver of jury trial — Removal to regular docket when jury trial requested.

  1. All claims in the small claims division shall be tried without a jury. Upon filing a claim, the plaintiff shall be deemed to have waived his right to a jury trial in the division. This waiver shall be explained on the claim form provided by the clerk.
  2. If the defendant in any action desires a jury trial, he shall give written notice to the division at least seven (7) days prior to the time set for the hearing, and the case shall be removed to the regular docket of the District Court, and shall thereafter be subject to all the provisions of law and rules of court applicable to proceedings in the District Court.

History. Enact. Acts 1976 (Ex. Sess.), ch. 9, § 14; 1990, ch. 463, § 2, effective July 13, 1990.

NOTES TO DECISIONS

Cited:

Miller v. Jones, 658 S.W.2d 888, 1983 Ky. App. LEXIS 348 (Ky. Ct. App. 1983).

Research References and Practice Aids

Kentucky Bench & Bar.

Greene, An Old Challenge in a New Dress, Vol. 42, No. 3, July 1978, Ky. Bench & Bar 16.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Small Claims Court, § 2.00.

24A.330. Informal hearings.

The hearing and disposition of all matters in the small claims division shall be informal.

History. Enact. Acts 1976 (Ex. Sess.), ch. 9, § 15.

24A.340. Appeal.

Any party aggrieved by the judgment of the small claims division may appeal within ten (10) days of the judgment to the Circuit Court in the judicial circuit where such division is located.

History. Enact. Acts 1976 (Ex. Sess.), ch. 9, § 16.

NOTES TO DECISIONS

1.Constitutionality.

In enacting this section, the General Assembly did not unconstitutionally infringe upon the rule-making power of the judiciary, and this section is a valid enactment as to appeals from the small claims division as recognized by CR 73.01(1), while the 30-day appeal period of CR 73.02(1)(a) governs all other appeals including those from the District Court. Miller v. Jones, 658 S.W.2d 888, 1983 Ky. App. LEXIS 348 (Ky. Ct. App. 1983).

2.Time Limitation Not Tolled.

The time to take an appeal from a small claims division judgment under this section is not tolled by motions under CR 50.02, 52.02, and CR 59. Hibberd v. Neil Huffman Datsun, Inc., 791 S.W.2d 726, 1990 Ky. App. LEXIS 87 (Ky. Ct. App. 1990).

Research References and Practice Aids

Kentucky Bench & Bar.

Laramore, Final Judgment: The Beginning of the End, Vol. 58, No. 3, Summer 1994, Ky. Bench & Bar 8.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Appeals from Kentucky District Courts to Circuit Court, § 100.00.

24A.350. Informational pamphlet — Preparation and distribution.

  1. The Attorney General shall prepare an informational pamphlet or suitable material in layman’s language explaining the jurisdiction of the small claims division, procedures followed by the division, rights and responsibilities of parties to proceedings in the division, and other similar matters of importance.
  2. The informational pamphlet shall be made available to all clerks. A copy of the pamphlet shall be given to the plaintiff upon filing the claim and mailed or delivered to the defendant along with service of process.

History. Enact. Acts 1976 (Ex. Sess.), ch. 9, § 17.

24A.360. Short title.

KRS 24A.200 to 24A.360 shall be known and may be cited as the “Small Claims Act”.

History. Enact. Acts 1976 (Ex. Sess.), ch. 9, § 1.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Small Claims Court, § 2.00.

CHAPTER 25 County (Probate), Quarterly and Justices’ Courts [Repealed]

25.010. Criminal and penal jurisdiction of county, quarterly and justices’ courts. [Repealed.]

Compiler’s Notes.

This section (1093: amend. Acts 1966, ch. 255, § 37) was repealed by Acts 1976, (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.012. Jurisdiction of county judge or justice of peace to examine criminal charge — Homicide. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 234, § 3) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.014. Jury trial in criminal prosecutions in county, quarterly and justices’ courts. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 234, § 4) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.015. Process, to whom directed — Special agent — Who may execute. [Repealed.]

Compiler’s Notes.

This section (C.C. 701: amend. & trans. Acts 1952, ch. 84, § 29; 1968, ch. 152, § 8) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.020. Judge or justice to have powers and duties as clerks. [Repealed.]

Compiler’s Notes.

This section (C.C. 702: trans. Acts 1952, ch. 84, § 1; 1968, ch. 152, § 9) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.025. Quarterly court clerk — County clerk’s duties. [Repealed.]

Compiler’s Notes.

This section (C.C. 703: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.030. District in which trial to be held — More than one defendant — Transient defendant. [Repealed.]

Compiler’s Notes.

This section (C.C. 710 to 712: amend. & trans. Acts 1952, ch. 84, §§ 1, 30; 1970, ch. 132, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.035. Jury trial, when may be claimed — Qualifications of jurors. [Repealed.]

Compiler’s Notes.

This section (C.C. 713: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.037. Jury commissioners for inferior courts — Appointment — Qualifications — Procedures — Compensation — Expenses. [Repealed.]

Compiler’s Notes.

This section (Acts 1964, ch. 147, §§ 1, 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.038. Trial commissioners for inferior courts in county containing an urban-county government. [Repealed.]

Compiler’s Notes.

This section (Acts 1976, ch. 37, § 3) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.040. Docket — Records and indexes to be kept. [Repealed.]

Compiler’s Notes.

This section (C.C. 715: trans. & amend. Acts 1952, ch. 84, § 31) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.045. New judgment if record lost or destroyed. [Repealed.]

Compiler’s Notes.

This section (C.C. 719: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.050. Setoff or counterclaim in excess of court’s jurisdiction. [Repealed.]

Compiler’s Notes.

This section (C.C. 720: trans. Acts 1952, ch. 84, § 1 ) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.055. Trial of provisional remedy. [Repealed.]

Compiler’s Notes.

This section (C.C. 721: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.060. Exemption of land from levy under execution. [Repealed.]

Compiler’s Notes.

This section (C.C. 722: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.065. Procedure for sale of land when return of execution shows “no property found.” [Repealed.]

Compiler’s Notes.

This section (C.C. 722: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.070. Appeals, docketing and procedure for trial. [Repealed.]

Compiler’s Notes.

This section (C.C. 726: trans. & amend. Acts 1952, ch. 84, § 32) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.110. Civil jurisdiction of county court. [Repealed.]

Compiler’s Notes.

This section (1057) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.120. Terms of county court — Where held. [Repealed.]

Compiler’s Notes.

This section (1058: amend. Acts 1942, ch. 167, §§ 8, 18; 1944, ch. 173, § 3; 1966, ch. 255, § 38) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.130. County judge, bond of. [Repealed.]

Compiler’s Notes.

This section (1061: amend. Acts 1966, ch. 124, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.140. County judge pro tem — Special judge. [Repealed.]

Compiler’s Notes.

This section (1059) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.150. County judge, powers of. [Repealed.]

Compiler’s Notes.

This section (1071) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.160. Record of orders and judgments — Who may sign. [Repealed.]

Compiler’s Notes.

This section (1060: amend. Acts 1970, ch. 41, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.170. Settlement with fiduciaries — Special commissioner. [Repealed.]

Compiler’s Notes.

This section (1062, 1065: amend. Acts 1942, ch. 167, §§ 12, 24) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.172. When informal settlement may be accepted from fiduciary. [Repealed.]

Compiler’s Notes.

This section (Acts 1972, ch. 2, § 1; 1974, ch. 308, § 23; 1976, ch. 218, § 23) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.175. Periodic accounting by fiduciaries — Final settlement. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 167, § 12; 1944, ch. 173, § 4) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.180. Evidence — How produced — Allowances to be supported by facts. [Repealed.]

Compiler’s Notes.

This section (1062 to 1064) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.190. Report and filing of settlement. [Repealed.]

Compiler’s Notes.

This section (1066, 1067) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.195. Notice of filing settlement. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 167, § 14; 1966, ch. 239, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.200. Exceptions — Confirmation — Recording — Effect as evidence. [Repealed.]

Compiler’s Notes.

This section (1067: amend. Acts 1942, ch. 167, §§ 13, 25) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.205. Certification of list of fiduciaries delinquent in accounting — Notice — Fee. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 167, § 12) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.210. Sureties of fiduciaries, inquiry into solvency of — Additional surety. [Repealed.]

Compiler’s Notes.

This section (1068) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.215. Settlement of accounts of fiduciaries — Jurisdiction. [Repealed.]

Compiler’s Notes.

This section (C.C. 472: amend. & trans. 1952, ch. 84, § 72) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.220. County judge or county clerk may not be fiduciary. [Repealed.]

Compiler’s Notes.

This section (1070) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.225. Practice of law by county judge. [Repealed.]

Compiler’s Notes.

This section (Acts 1976, ch. 58, § 7) was repealed by Acts 1976, ch. 58, § 7, effective January 1, 1978.

25.230. Compensation of special commissioner in counties having city of second class. [Repealed.]

Compiler’s Notes.

This section (1067a) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.240. Office of county judge — Filing and preservation of papers. [Repealed.]

Compiler’s Notes.

This section (1069) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.250. Salary of county judge. [Repealed.]

Compiler’s Notes.

This section (1072) was repealed by Acts 1950, ch. 123, § 29. For present law see KRS 64.535 .

25.260. Compensation of county judge for serving in misdemeanor case. [Repealed.]

Compiler’s Notes.

This section (1732a-2) was repealed by Acts 1950, ch. 123, § 29. For present law see KRS 64.535 .

25.270. Vacation of county judge — Salary of pro tem judge. [Repealed.]

Compiler’s Notes.

This section (1072a: amend. Acts 1942, ch. 134, §§ 1, 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.280. Trial commissioner for county court. [Repealed.]

Compiler’s Notes.

This section (1077b-1: amend. Acts 1942, ch. 44, §§ 1, 2; 1946, ch. 11, § 1; 1966, ch. 152, § 1; 1968, ch. 52, § 1; 1968, ch. 152, § 10) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.290. Stenographer to county judge. [Repealed.]

Compiler’s Notes.

This section (1061a-1, 1061a-4: amend. Acts 1950, ch. 164, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.300. Duties of stenographer — May administer oath. [Repealed.]

Compiler’s Notes.

This section (1061a-2, 1061a-3) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.310. Salary of stenographer. [Repealed.]

Compiler’s Notes.

This section (1061a-4: amend. Acts 1942, ch. 180, § 7; 1946, ch. 229; 1948, ch. 157) was repealed by Acts 1950, ch. 123, § 29.

25.320. County judge expense allowance fund. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 285, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, and Acts 1976 (Ex. Sess.), ch. 20, § 8, effective January 2, 1978.

25.330. Payments to judges from fund. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 285, § 3; 1966, ch. 228, § 1; 1970, ch. 188, § 1; 1974, ch. 74, Art. II, § 9(2); 1974, ch. 189, § 1; 1976, ch. 73, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, and Acts 1976 (Ex. Sess.), ch. 20, § 8, effective January 2, 1978.

25.350. Definitions. [Repealed.]

Compiler’s Notes.

This section (Acts 1970, ch. 43, § 5) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.360. County judge pro tem to assume duties. [Repealed.]

Compiler’s Notes.

This section (Acts 1970, ch. 43, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.370. Appointment of county judge pro tem. [Repealed.]

Compiler’s Notes.

This section (Acts 1970, ch. 43, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.380. Succession of fiscal court member. [Repealed.]

Compiler’s Notes.

This section (Acts 1970, ch. 43, § 3) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.390. Duration of successor’s service. [Repealed.]

Compiler’s Notes.

This section (Acts 1970, ch. 43, § 4) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.410. Civil jurisdiction of quarterly courts. [Repealed.]

Compiler’s Notes.

This section (1051; amend. 1952, ch. 76, § 1; 1960, ch. 238, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.420. Real property cases, transfer of to circuit court. [Repealed.]

Compiler’s Notes.

This section (1052) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.430. Motions against constables and their sureties. [Repealed.]

Compiler’s Notes.

This section (1053) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.440. Appeals from justices’, police and fiscal courts. [Repealed.]

Compiler’s Notes.

This section (1054) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.450. County judge to preside — Pro tem judge — Terms of court — Where held in certain counties. [Repealed.]

Compiler’s Notes.

This section (1050; amend. 1942, ch. 126 § 1, 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.460. Special judge of quarterly court. [Repealed.]

Compiler’s Notes.

This section (968, 970, 971, 1056) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.470. Records of quarterly courts. [Repealed.]

Compiler’s Notes.

This section (1055; amend. 1954, ch. 51, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.480. Clerk, quarterly court — Appointment — Powers — Duties — Salary. [Repealed.]

Compiler’s Notes.

This section (1055; amend. 1962, ch. 234, § 62(2); 1964, ch. 159, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.490. Clerks and deputy clerks in quarterly courts in counties having an urban-county government and in counties of 250,000 population — Salaries — Duties — Bonds — Disposition of fees. [Repealed.]

Compiler’s Notes.

This section (1055a-1, 1055a-3; amend. 1942, ch. 180 § 4, 7; 1950, ch. 158, § 1; 1962, ch. 210 § 62; 1976, ch. 37 § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.500. Fee for commencing civil action in quarterly court in counties of 250,000 population. [Repealed.]

Compiler’s Notes.

This section (1055a-2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.510. Bonds for appearance of persons arrested — Clerk or deputy to take — Office to be open at night. [Repealed.]

Compiler’s Notes.

This section (1055a-4; amend. 1976, ch. 37, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.610. Civil jurisdiction of justices’ courts. [Repealed.]

Compiler’s Notes.

This section (1086: amend. Acts 1952, ch. 76, § 2; 1960, ch. 238, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.620. Terms of justice’s court — How fixed. [Repealed.]

Compiler’s Notes.

This section (1085, 1085a-1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.625. Fiscal court may allow justice to hold court in courthouse in county with second or third-class city — County to provide office and equipment. [Repealed.]

Compiler’s Notes.

This section (Acts 1970, ch. 132, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.630. Absence or disability of justice — Vacancy — Successor of justice. [Repealed.]

Compiler’s Notes.

This section (1090, 1108) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.640. Powers of justice. [Repealed.]

Compiler’s Notes.

This section (1084, 1087) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.650. Bond of justice. [Repealed.]

Compiler’s Notes.

This section (1084: amend. Acts 1960, ch. 251; 1966, ch. 124, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.660. Record books — Receipts for payment of fines and forfeitures. [Repealed.]

Compiler’s Notes.

This section (1088, 1092: amend. Acts 1954, ch. 51, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.670. Warrants and motions, order of trial. [Repealed.]

Compiler’s Notes.

This section (1089) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.680. Reappportionment of county into justices’ districts. [Repealed.]

Compiler’s Notes.

This section (1082) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.690. Commissioners to reapportion county. [Repealed.]

Compiler’s Notes.

This section (1079, 1083) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.700. Establishment of boundaries — Election precinct line not to be crossed — Exceptions to report. [Repealed.]

Compiler’s Notes.

This section (1080, 1081) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.710. Recorder and deputy recorder in counties of 250,000 population. [Repealed.]

Compiler’s Notes.

This section (1083a-4: amend. Acts 1942, ch. 180, §§ 4, 7) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.720. Duties and powers of recorder. [Repealed.]

Compiler’s Notes.

This section (1083a-5) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.730. Liability of recorder and sureties. [Repealed.]

Compiler’s Notes.

This section (1083a-8) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.740. Office of justice, constables and recorders — Expense of. [Repealed.]

Compiler’s Notes.

This section (1083a-10) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.750. Uniform rules of court — Adoption and amendment by justices. [Repealed.]

Compiler’s Notes.

This section (1083a-12) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.760. Blank warrants. [Repealed.]

Compiler’s Notes.

This section (1092) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.770. False entries on books of justice or recorder. [Repealed.]

Compiler’s Notes.

This section (1083a-13, 1083a-14) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

25.780. Justice’s clerks in county containing second-class city. [Repealed.]

Compiler’s Notes.

This section (Acts 1960, ch. 239) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

25.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (1065, 1083a-13, 1083a-14, 1088, 1092: amend. Acts 1974, ch. 406, § 298) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

CHAPTER 26 Police Courts [Repealed]

26.010. Criminal and penal jurisdiction of police courts. [Repealed.]

Compiler’s Notes.

This section (1093, 2912, 3147, 3359, 3513, 3651, 3710: amend. Acts 1966, ch. 255, § 39) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.020. Jurisdiction as an examining court. [Repealed.]

Compiler’s Notes.

This section (2912, 3147, 3362, 3513, 3625) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.030. Civil jurisdiction of police courts. [Repealed.]

Compiler’s Notes.

This section (3513, 3651, 3710) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.035. Procedure in civil cases in police courts. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 152, § 11) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.040. Real estate cases, transfer of from police court in cities of fourth class. [Repealed.]

Compiler’s Notes.

This section (3518) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.050. Terms of police courts. [Repealed.]

Compiler’s Notes.

This section (2924, 3158, 3357, 3523, 3651, 3710) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.060. Place for holding police courts. [Repealed.]

Compiler’s Notes.

This section (2928, 3150, 3357, 3522) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.070. Orders, how modified, vacated or suspended in cities of first class. [Repealed.]

Compiler’s Notes.

This section (2918) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.080. Appeals to circuit court and Court of Appeals from police court in cities of first class. [Repealed.]

Compiler’s Notes.

This section (2922) was repealed by Acts 1962, ch. 234, § 61.

26.090. Appeals to Court of Appeals from police court in cities of second class. [Repealed.]

Compiler’s Notes.

This section (3063) was repealed by Acts 1962, ch. 234, § 61.

26.100. Appeals to circuit court from police court in cities of third class. [Repealed.]

Compiler’s Notes.

This section (3367) was repealed by Acts 1962, ch. 234, § 61.

26.110. Appeals to circuit court and Court of Appeals from police court in cities of fourth class. [Repealed.]

Compiler’s Notes.

This section (3517, 3519) was repealed by Acts 1962, ch. 234, § 61.

26.120. Appeals from police courts in cities of fifth and sixth classes. [Repealed.]

Compiler’s Notes.

This section (3651, 3710) was repealed by Acts 1962, ch. 234, § 61.

26.130. Organization of police court in cities of first class. [Repealed.]

Compiler’s Notes.

This section (2911-1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.140. Police judge in cities of first class. [Repealed.]

Compiler’s Notes.

This section (2915, 2923, 2924, 2926) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.150. Judge of police court in cities of second class. [Repealed.]

Compiler’s Notes.

This section (3146, 3170: amend. Acts 1966, ch. 255, § 40; 1970, ch. 272, § 1; 1972, ch. 63, § 1; 1974, ch. 390, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.155. Equation of compensation. [Repealed.]

Compiler’s Notes.

This section (1974, ch. 390, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.160. Riot, rout or unlawful assembly — Duty of police judge in cities of second class. [Repealed.]

Compiler’s Notes.

This section (3149) has been repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

26.170. Police judge, third-class cities, salary, qualifications. [Repealed.]

Compiler’s Notes.

This section (3352, 3353, 3354, 3356: amend. Acts 1962, ch. 24, § 3; 1964, ch. 73, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.180. Powers of police judge in cities of third class — Fees. [Repealed.]

Compiler’s Notes.

This section (3355, 3362) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.190. Police court and judge in cities of fourth class. [Repealed.]

Compiler’s Notes.

This section (3510, 3511, 3513, 3515) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.200. Police judge in cities of fifth and sixth classes. [Repealed.]

Compiler’s Notes.

This section (3625, 3652, 3671, 3691) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.210. Compensation of police judge in cities of fifth and sixth classes. [Repealed.]

Compiler’s Notes.

This section (3642, 3652, 3711) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.220. Trial commissioners of police court in cities of first class — Judge pro tempore. [Repealed.]

Compiler’s Notes.

This section (2925: amend. Acts 1948, ch. 213; 1950, ch. 166; 1954, ch. 31) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.230. Police judge in cities of first class, how sworn off bench. [Repealed.]

Compiler’s Notes.

This section (2927) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.235. Trial commissioners of police court in cities of second class — Powers — Compensation. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 243, § 1; 1972, ch. 262, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.240. Judge pro tem of police court in cities of second class. [Repealed.]

Compiler’s Notes.

This section (3170: amend. Acts 1966, ch. 243, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.250. Judge pro tem of police court. [Repealed.]

Compiler’s Notes.

This section (3295: amend. Acts 1964, ch. 73, § 2; 1964, ch. 186; 1966, ch. 255, § 41) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.260. Judge pro tem of police court in cities of fourth class. [Repealed.]

Compiler’s Notes.

This section (3512) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.270. Judge pro tem of police courts in cities of fifth and sixth classes. [Repealed.]

Compiler’s Notes.

This section (3652, 3711) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.280. Records of police court in cities of first class. [Repealed.]

Compiler’s Notes.

This section (2918) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.290. Courts of record — Seal — Certified copies of record. [Repealed.]

Compiler’s Notes.

This section (2911-1, 3150, 3358, 3361, 3521) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.300. Practice in police courts, how governed. [Repealed.]

Compiler’s Notes.

This section (2915, 3524, 3651, 3710: amend. Acts 1962, ch. 234, § 62(2); 1968, ch. 152, § 12) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.310. Procedure in examining court, cities of first class. [Repealed.]

Compiler’s Notes.

This section (2912) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.320. Style of prosecutions and process. [Repealed.]

Compiler’s Notes.

This section (2943, 3063, 3360, 3525, 3642, 3702) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.330. Process, by whom issued. [Repealed.]

Compiler’s Notes.

This section (2934, 3156, 3355: amend. Acts 1944, ch. 139, § 1; 1962, ch. 234, §§ 5, 61; 1972, ch. 241, § 2; 1972, ch. 262, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.340. Process in cities of first class, how directed and executed. [Repealed.]

Compiler’s Notes.

This section (2943) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.350. Process in cities of fourth class, to whom directed. [Repealed.]

Compiler’s Notes.

This section (3525) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.360. Trial of persons arrested in cities of first class. [Repealed.]

Compiler’s Notes.

This section (2912: amend. Acts 1976, ch. 302, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.370. Recognizances in police court in cities of second class. [Repealed.]

Compiler’s Notes.

This section (3147, 3152, 3159) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.380. Recognizances in police court in cities of third class. [Repealed.]

Compiler’s Notes.

This section (3359) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.390. Recognizances in police court in cities of fourth class. [Repealed.]

Compiler’s Notes.

This section (3513) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.400. Jury in police courts. [Repealed.]

Compiler’s Notes.

This section (2913, 3154, 3160, 3365, 3530: amend. Acts 1956, ch. 81, § 2; 1962, ch. 234, §§ 6, 61) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.405. Police court jurors selection in second-class cities. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 81, § 1; 1960, ch. 216) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.407. Police court jurors, third-class cities, selection — Compensation of jury commissioners. [Repealed.]

Compiler’s Notes.

This section (Acts 1964, ch. 74) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.410. Fees of witnesses in police courts, cities of first, second and fourth classes. [Repealed.]

Compiler’s Notes.

This section (2920, 3154, 3529) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.420. Witness fees, when taxed as costs in cities of fourth class. [Repealed.]

Compiler’s Notes.

This section (3529) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.430. Fees and costs in police courts. [Repealed.]

Compiler’s Notes.

This section (2921, 3153, 3162, 3361, 3366, 3513, 3515: amend. Acts 1964, ch. 125, § 2; 1970, ch. 182, § 1; 1972, ch. 131, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.440. Drunkenness or disorderly conduct — Disposition in cities of first and fourth classes. [Repealed.]

Compiler’s Notes.

This section (2914, 3530: amend. Acts 1954, ch. 197, § 1; 1966, ch. 255, § 42; 1968, ch. 152, § 13) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.450. Imprisonment for misdemeanor in city of first class. [Repealed.]

Compiler’s Notes.

This section (2913, 2916: amend. Acts 1954, ch. 197, § 2; 1968, ch. 152, § 168; 1974, ch. 406, § 299) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.460. Prisoners, where confined in cities of second class. [Repealed.]

Compiler’s Notes.

This section (3151) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.470. Imprisonment, how satisfied in cities of third class. [Repealed.]

Compiler’s Notes.

This section (3363: amend. 1974, ch. 406, § 300) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.480. Fines and costs, how satisfied in cities of fourth class. [Repealed.]

Compiler’s Notes.

This section (3490-23, 3528) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.490. Prisoners, confinement and compulsory labor of, in cities of fifth and sixth classes. [Repealed.]

Compiler’s Notes.

This section (3637-6, 3642, 3702, 3704-6: amend. 1974, ch. 406, § 301) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.500. Replevin bonds, recording and enforcement in cities of second class. [Repealed.]

Compiler’s Notes.

This section (3163) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.510. Final process, cities of third class. [Repealed.]

Compiler’s Notes.

This section (3368) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.520. Attachment upon return of execution in cities of second and fourth classes. [Repealed.]

Compiler’s Notes.

This section (3169, 3527) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.530. Fines, forfeitures, jail taxes and costs recovered in police courts, how disposed of. [Repealed.]

Compiler’s Notes.

This section (2917, 3155, 3162, 3360, 3368, 3515, 3516, 3517, 3526, 3642: amend. Acts 1954, ch. 53, § 1; 1964, ch. 125, § 3; 1966, ch. 255, § 283) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.540. Clerk and deputy clerks of police court in cities of first class. [Repealed.]

Compiler’s Notes.

This section (2911-4, 2929, 2930) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.550. Duties and powers of clerk in cities of first class. [Repealed.]

Compiler’s Notes.

This section (2930) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.560. Fees of clerk and deputy clerks, cities of first class. [Repealed.]

Compiler’s Notes.

This section (2930, 2931: amend. Acts 1950, ch. 123, § 29) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.570. Clerk of police court in cities of second class. [Repealed.]

Compiler’s Notes.

This section (3157: amend. Acts 1944, ch. 44, § 1; 1954, ch. 132, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.580. Clerk of police court in cities of third class. [Repealed.]

Compiler’s Notes.

This section (3361: amend. Acts 1972, ch. 36, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.590. Clerk and deputy clerk of police court in cities of fourth class. [Repealed.]

Compiler’s Notes.

This section (3514) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.600. Policeman to serve in police court in cities of first class. [Repealed.]

Compiler’s Notes.

This section (2940, 2944-1, 2944-2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.610. Matrons of police court in cities of first class. [Repealed.]

Compiler’s Notes.

This section (2946a-1, 2946a-3, 2946a-4: amend. Acts 1946, ch. 160, § 1; 1966, ch. 255, § 43; 1974, ch. 49, § 1; 1974, ch. 386, § 6) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.620. Doorkeeper for police court in cities of first class. [Repealed.]

Compiler’s Notes.

This section (2928a-1: amend. Acts 1948, ch. 41, § 1; 1966, ch. 255, § 44) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.650. Pensions for police court judges in cities of the second class. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 50, § 1; 1956, ch. 30; 1970, ch. 224, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.652. Pensions for police court judges in cities of the third class. [Repealed.]

Compiler’s Notes.

This section (Acts 1972, ch. 241, § 4) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.655. Police judge pension fund — Contributions by judges — Control of fund. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 50, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.660. Amount of pension. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 50, § 3; 1970, ch. 224, § 2; 1974, ch. 386, § 7) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.665. Refund of contributions to defeated candidate for re-election as police judge. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 50, § 4; 1970, ch. 224, § 3) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

26.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (2919, 2930) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

CHAPTER 26A Court of Justice

26A.010. Collection of judgment — Damages. [Renumbered KRS 26A.300.]

Compiler’s Notes.

This section (Acts 1976, ch. 59, § 1) was renumbered by the Reviser in 1977 as KRS 26A.300 .

Legislative Research Commission Notes.

KRS 26A.010 was not intended to be included in the repeal by Acts 1976 (Ex. Sess.), ch. 14, § 491 of “Chapters 23-27.”

26A.012. Persons with disabilities or members of their families to be included in membership of boards and committees affecting them — Prohibition against discrimination.

  1. To ensure opportunities for participation by persons with disabilities and their families in the development of policies, support, and services that affect them:
    1. Persons with one (1) or more disabilities, or members of their families, who may be affected by or be the subject of an advisory board, committee, commission, task force, or ad hoc committee, shall be included in the membership of each advisory board, committee, commission, task force, or ad hoc committee of the judicial branch.
    2. Persons with one (1) or more disabilities, or members of their families, shall be included in the membership of any advisory committee, board, or commission of the judicial branch whose mission or purpose is to make recommendations or to establish criteria for services and support for persons with disabilities or to develop standards that govern the services and support funded or administered by any state government agency.
    3. Persons with one (1) or more disabilities shall not be discriminated against and shall be given an equal opportunity to be included in the membership of any other advisory board, committee, commission, task force, or ad hoc committee consistent with and to the extent required by the Federal Americans with Disabilities Act.
  2. As used in this section “disability” has the same meaning as in KRS 12.450 .
  3. The requirements of this section shall affect all boards, committees, commissions, task forces, or ad hoc committees created on or after June 21, 2001.
  4. For boards, committees, commissions, task forces, or ad hoc committees in existence prior to June 21, 2001, any vacancy arising on or after June 21, 2001, shall be filled pursuant to this section.
  5. The requirements of this section shall only apply to an advisory board, committee, commission, task force, or ad hoc committee that is created specifically to develop or oversee policies or programs related to persons living with a disability or their families, except that the provisions of paragraph (c) of subsection (1) of this section shall apply.

History. Enact. Acts 1996, ch. 336, § 6, effective July 15, 1996; 2001, ch. 164, § 16, effective June 21, 2001.

Compiler’s Notes.

Section 8 of Acts 1996, ch. 336, read: “This Act may be cited as the Kentucky Persons With Disabilities on State Agency Boards Act.”

26A.013. Employment in decision-making positions and participation in programs consistent with the Federal Americans with Disabilities Act — Disability awareness program.

To ensure that Kentuckians with disabilities and their families enjoy full partnership in all programs, services, and activities throughout the Commonwealth:

  1. Consistent with this subsection, consideration shall be given to persons with one (1) or more disabilities for employment in decision-making positions in the judicial branch of government. Persons with one (1) or more disabilities shall not be discriminated against and shall be given an equal opportunity to be employed in decision-making positions in programs created or under the jurisdiction of the judicial branch consistent with and to the extent required by the Federal Americans with Disabilities Act;
  2. Individuals with disabilities shall be given equal opportunity to participate in the programs established by the judicial branch consistent with and to the extent required by the Federal Americans with Disabilities Act;
  3. If not already a part of staff development training for the judicial branch, a program shall be developed with a disability awareness component;
  4. If program evaluation criteria are utilized by the judicial branch for its programs, services, and activities, the criteria may include in the measures of performance, the number of individuals served by the program, service, or activity.

History. Enact. Acts 2001, ch. 164, § 15, effective June 21, 2001.

Compiler’s Notes.

The Federal Americans with Disabilities Act, referenced in this section, is compiled at 42 USCS §§ 12101, et seq.

Judges

26A.015. Disqualification of justice or judge of the Court of Justice, or master commissioner.

  1. For the purposes of this section the following words or phrases shall have the meaning indicated:
    1. “Proceeding” includes pretrial, trial, appellate review, or other stages of litigation;
    2. “Fiduciary” includes such relationships as executor, administrator, conservator, trustee, and guardian;
    3. “Financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
      1. Ownership in a mutual or common investment fund that holds securities, or a proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, or ownership of government securities is a “financial interest” only if the outcome of the proceeding could substantially affect the value of the interest;
      2. An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization.
  2. Any justice or judge of the Court of Justice or master commissioner shall disqualify himself in any proceeding:
    1. Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings, or has expressed an opinion concerning the merits of the proceeding;
    2. Where in private practice or government service he served as a lawyer or rendered a legal opinion in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter in controversy, or the judge, master commissioner or such lawyer has been a material witness concerning the matter in controversy;
    3. Where he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a pecuniary or proprietary interest in the subject matter in controversy or in a party to the proceeding;
    4. Where he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
      1. Is a party to the proceeding, or an officer, director, or trustee of a party;
      2. Is acting as a lawyer in the proceeding and the disqualification is not waived by stipulation of counsel in the proceeding filed therein;
      3. Is known by the judge or master commissioner to have an interest that could be substantially affected by the outcome of the proceeding;
      4. Is to the knowledge of the judge or master commissioner likely to be a material witness in the proceeding.
    5. Where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned.
    1. Any justice or judge of the Court of Justice disqualified under the provisions of this section shall be replaced by the Chief Justice. (3) (a) Any justice or judge of the Court of Justice disqualified under the provisions of this section shall be replaced by the Chief Justice.
    2. Any master commissioner disqualified under the provisions of this section or unable to discharge the duties of his office for any other reason shall be replaced by a special commissioner who shall be appointed by the judge of the court before whom the action is pending. The special commissioner shall meet the same qualifications as a master commissioner and shall take an oath and execute a bond as the regular commissioner is required to do.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 4; 1982, ch. 141, § 41, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 44 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Constitutionality.

Because a court can only facially invalidate a statute for vagueness if the statute chills a substantial amount of protected speech, the court finds that the “reasonably be questioned” language of KRS 26A.015(2)(e) and SCR 4.300-3(E)(1) is not impermissibly vague. Family Trust Found., Inc. v. Wolnitzek, 345 F. Supp. 2d 672, 2004 U.S. Dist. LEXIS 24458 (E.D. Ky. 2004 ).

Plaintiffs, who sought to have judicial candidates answer survey questions regarding their views on particular issues, were entitled to a preliminary injunction prohibiting enforcement of SCR 4.300-5B(1)(c), which sought to regulate and prohibit statements of candidates for judicial office, because Canon 5B(1)(c) was overbroad in that it prohibited certain types of protected speech and plaintiffs were likely to prevail with respect to this claim. However, plaintiffs were not likely to prevail with respect to their challenge to the recusal statute, KRS 26A.015(2)(e), or SCR 4.300-3E(1) because they had not shown that they would suffer irreparable injury if the court denied the relief requested. Family Trust Found., Inc. v. Wolnitzek, 345 F. Supp. 2d 672, 2004 U.S. Dist. LEXIS 24458 (E.D. Ky. 2004 ).

While SCR 4.300-3(E)(1) and KRS 26A.015(2)(e) may have the effect of chilling some speech, the court could not conclude that in light of the state’s compelling interest in maintaining the impartiality and appearance of impartiality of the courts that SCR 4.300-3(E)(1) and KRS 26A.015(2)(e) prohibits a “substantial” amount of protected speech in relation to its many legitimate applications. Family Trust Found., Inc. v. Wolnitzek, 345 F. Supp. 2d 672, 2004 U.S. Dist. LEXIS 24458 (E.D. Ky. 2004 ).

2.Type of Disqualification.

There is no merit in the argument that a trial judge is not required to disqualify himself if his ruling involves a question of law rather than a matter of discretion, since this section does not condition a judge’s disqualification on the type of ruling involved. Carter v. Commonwealth, 641 S.W.2d 758, 1982 Ky. App. LEXIS 263 (Ky. Ct. App. 1982).

KRS 26A.020 (1) provides a separate and distinct opportunity to a party who does not believe he or she will receive a fair and impartial trial. When a party or counsel seeks to disqualify or recuse a judge from proceeding further in any matter, a motion can be filed with the judge under this section or an affidavit pursuant to KRS 26A.020 . It would also appear that an aggrieved party can do either or both. Nichols v. Commonwealth, 839 S.W.2d 263, 1992 Ky. LEXIS 143 ( Ky. 1992 ).

3.Power After Disqualification.

After the regular judge has disqualified himself and vacated the bench he has no power thereafter in that particular case to appoint attorney to defend the accused. (Decided under prior law)Wedding v. Lair, 404 S.W.2d 451, 1966 Ky. LEXIS 297 ( Ky. 1966 ).

4.Suit against Supreme Court.

Where the members of the Supreme Court were named as parties defendant in the proceeding as originally brought in the Circuit Court they were not disqualified, by virtue of subsection (2)(d)1 of this section or by the principles of due process, since there is little to distinguish a suit brought in the Circuit Court against the Supreme Court and its members in their official capacities from a mere sham. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

5.Degree of Relationship to Judge.

Where one of the attorneys was married to the sister of the trial court judge, the correct remedy would be under KRS 26A.020 , rather than under subsection (2) of this section; therefore an action brought under this section must be dismissed. Middle States Coal Co. v. Cornett, 576 S.W.2d 250, 1978 Ky. App. LEXIS 658 (Ky. Ct. App. 1978).

Where defendant-petitioner, pursuant to CR 76.36, sought a writ of probation, seeking to disqualify the judge, under subsection (2)(d)2 of this section, since one of plaintiff’s cocounsel was the judge’s sister, it did not matter whether the degree of relationship was computed according to the common-law method, by which the degree is ascertained by counting down from common ancestor to the more remote party, or under the civil law method, which counts from one party to the common ancestor then down to the other, since in either event the sister was within the third degree of relationship, and accordingly the judge must disqualify himself. Middle States Coal Co. v. Cornett, 584 S.W.2d 593, 1978 Ky. App. LEXIS 681 (Ky. Ct. App. 1978).

Where an attorney married to the sister of the trial judge in the proceeding was intended to be one of the co-counsels but did not actually participate in the trial, he nevertheless acted “as a lawyer in the proceeding” under subsection (2)(d) of this section since it is immaterial whether that relationship continued into the trial itself; therefore, the trial judge’s refusal to disqualify himself constituted reversible error. Middle States Coal Co. v. Hicks, 608 S.W.2d 56, 1980 Ky. App. LEXIS 380 (Ky. Ct. App. 1980).

Where the judge’s wife was deceased, the degree of relationship between the judge’s wife and the prosecutor did not require the disqualification of the judge under KRS 26A.015(2)(d)(2). Butcher v. Commonwealth, 96 S.W.3d 3, 2002 Ky. LEXIS 224 ( Ky. 2002 ), cert. denied, 540 U.S. 864, 124 S. Ct. 174, 157 L. Ed. 2d 116, 2003 U.S. LEXIS 6842 (U.S. 2003).

Where the spouse of the trial judge was an associate of the law firm that represented the patient in the medical malpractice action before the trial judge, the trial judge erroneously failed to recuse herself from the trial, as KRS 26A.015(2)(d)(2) and SCR 4.300, Canon 3E(1)(d)(ii) required the trial judge to recuse oneself if the judge’s spouse appeared before the trial judge, and SCR 1.10(a) imputed disqualification of one (1) associate of a law firm to all members of the firm. Abell v. Oliver, 117 S.W.3d 661, 2003 Ky. App. LEXIS 269 (Ky. Ct. App. 2003).

6.Judge Formerly Commonwealth’s Attorney.

Where the Commonwealth’s attorney who had recommended sentence in a defendant’s reckless homicide prosecution later became a judge and served in that capacity when the same defendant appeared before him in action revoking that defendant’s shock probation, the judge should have disqualified himself under subsection (2)(e) of this section, since it was reasonable to assume that he would remember a case occurring some 17 months previously and since a probation or parole revocation, although not part of a criminal prosecution, is sufficiently related to the underlying criminal action to require disqualification under subsection (2)(b) of this section. Small v. Commonwealth, 617 S.W.2d 61, 1981 Ky. App. LEXIS 249 (Ky. Ct. App. 1981).

7.Waiver.

Where the Commonwealth’s attorney who had recommended sentence in a defendant’s reckless homicide prosecution later became a judge and served in that capacity when the same defendant appeared before him in action revoking defendant’s shock probation, the failure of the defendant to file a motion in the lower court for the judge to disqualify himself was not a waiver of this section’s provisions, since such a waiver must either be on the record or in writing, but will not be presumed from silence. Small v. Commonwealth, 617 S.W.2d 61, 1981 Ky. App. LEXIS 249 (Ky. Ct. App. 1981).

Trial court did not err in denying the contractor's motion to recuse where the only basis for disqualification was legal campaign contribution the supplier's principal and counsel had made to the judge. those contributions were known as soon as the case was assigned to the judge, and the contractor had not filed the motion to recuse when the case was first transferred. Adkins v. Wrightway Readymix, LLC, 499 S.W.3d 286, 2016 Ky. App. LEXIS 148 (Ky. Ct. App. 2016).

8.Burden of Proof.

The burden of proving disqualification of judge under subdivision (2)(b) of this section is on the defendant who may belatedly contend that he was prejudiced, rather than upon the judge. Commonwealth v. Carter, 701 S.W.2d 409, 1985 Ky. LEXIS 301 ( Ky. 1985 ).

9.Matter in Controversy.

Where defendant pled guilty to third degree burglary charge, reduced charge of second degree burglary, and first degree persistent felony charge, and the judge who accepted the guilty pleas had been the county attorney when defendant was sentenced on two previous convictions which were utilized to affix the status of persistent felony offender to him as defendant in the current proceeding, the judge was not disqualified under subdivision (2)(b) of this section, for the reason that those prior convictions were not “the matter in controversy.” Commonwealth v. Carter, 701 S.W.2d 409, 1985 Ky. LEXIS 301 ( Ky. 1985 ).

10.Mandatory Compliance.

In those cases in which the party relies upon the failure of any justice or judge of the Court of Justice to disqualify himself under the provisions of subdivision (2)(b) of this section, it must appear from the record, either by motion or otherwise, that he was apprised of his connection with the matter in controversy. Once brought to the attention of the judge or justice, compliance with this subdivision is mandatory. Commonwealth v. Carter, 701 S.W.2d 409, 1985 Ky. LEXIS 301 ( Ky. 1985 ).

The language of subsection (2)(b) of this section is mandatory; therefore, the trial judge hearing the defendant’s motion for a new trial committed reversible error in not disqualifying himself, where the facts showed that the judge, while a county attorney, had served as an assistant to the Commonwealth’s attorney who prosecuted the defendant. Carter v. Commonwealth, 641 S.W.2d 758, 1982 Ky. App. LEXIS 263 (Ky. Ct. App. 1982).

11.Knowledge Obtained Earlier in Proceeding.

Recusal is appropriate only when the information is derived from an extra-judicial source; knowledge obtained in the course of earlier participation in the same case does not require that a judge recuse himself. Marlowe v. Commonwealth, 709 S.W.2d 424, 1986 Ky. LEXIS 253 (Ky.), cert. denied, 479 U.S. 946, 107 S. Ct. 427, 93 L. Ed. 2d 378, 1986 U.S. LEXIS 4620 (U.S. 1986).

The trial judge did not err in failing to recuse himself because of information he learned while presiding over the subsequently withdrawn guilty plea. Marlowe v. Commonwealth, 709 S.W.2d 424, 1986 Ky. LEXIS 253 (Ky.), cert. denied, 479 U.S. 946, 107 S. Ct. 427, 93 L. Ed. 2d 378, 1986 U.S. LEXIS 4620 (U.S. 1986).

Judge who issued a search warrant did not have to recuse from a suppression hearing involving the warrant because (1) nothing raised questions about the judge’s impartiality, (2) it was not alleged that the judge was not a neutral and detached magistrate able to make a probable cause finding, and (3) automatic recusal was not appropriate. Minks v. Commonwealth, 427 S.W.3d 802, 2014 Ky. LEXIS 166 ( Ky. 2014 ).

There was no error in the circuit court’s refusal to recuse pursuant to Ky. Rev. Stat. Ann. § 26A.015(2)(a) where the trial judge’s ruling in the first action did not disqualify him, and even if it did, the circuit court was being called upon in the second action to review findings of fact and conclusions of law that had not been in existence during the earlier action, and thus, it had not expressed any type of opinion as to the findings of fact and conclusions of law before it in the second action. Wilson v. Askew, 568 S.W.3d 375, 2019 Ky. App. LEXIS 5 (Ky. Ct. App. 2019).

12.Expression of Opinion Concerning Merits of Proceeding.

The action of the judge in setting a sentencing date on the last day to file a new trial motion as well as examining the psychiatrist’s report which was not used at trial and transferring the defendant to another jail did not constitute the expression of an opinion concerning the merits of the proceeding which requires recusal pursuant to subdivision (2)(a) of this section. Smith v. Commonwealth, 734 S.W.2d 437, 1987 Ky. LEXIS 200 ( Ky. 1987 ), cert. denied, 484 U.S. 1036, 108 S. Ct. 762, 98 L. Ed. 2d 778, 1988 U.S. LEXIS 425 (U.S. 1988).

13.Appellate Judge Connected to District Court’s Decision.

Under the major premise of SCR 4.300, Canon 3C, a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned; as a general principle a judge should not sit in review of a case decided by him, however, this general principle must be given common sense application. Poorman v. Commonwealth, 782 S.W.2d 603, 1989 Ky. LEXIS 85 ( Ky. 1989 ), cert. denied, 497 U.S. 1008, 110 S. Ct. 3249, 111 L. Ed. 2d 759, 1990 U.S. LEXIS 3327 (U.S. 1990).

Fact that appellate judge did not disqualify herself did not entitle appellant to reversal, where there was no issue on appeal directly or indirectly involving appellate judge’s rulings made at the District Court level, as the issues on appeal were confined to Circuit Court proceedings; the record did not suggest that the judge was aware before it was time for oral argument of her previous limited connection to this case; and where after it was brought to her attention during oral argument, there was no suggestion that appellant or his counsel preferred her recusal. Poorman v. Commonwealth, 782 S.W.2d 603, 1989 Ky. LEXIS 85 ( Ky. 1989 ), cert. denied, 497 U.S. 1008, 110 S. Ct. 3249, 111 L. Ed. 2d 759, 1990 U.S. LEXIS 3327 (U.S. 1990).

Some reasons for recusal are: (1) there is an issue on appeal that called for the trial judge to review a decision he had made at the District Court level; and (2) the trial judge was apprised of his connection with the matter sufficiently in advance of the time when the case is to be heard so that he could have been replaced without interrupting the procedure. Woods v. Commonwealth, 793 S.W.2d 809, 1990 Ky. LEXIS 67 ( Ky. 1990 ).

14.Source Outside of Proceedings.

Recusal must be the rule in those situations where the judge’s knowledge about a case is obtained from a source other than the case record and where such knowledge may bear on the judge’s decision. Woods v. Commonwealth, 793 S.W.2d 809, 1990 Ky. LEXIS 67 ( Ky. 1990 ).

15.Bias.

The expression of the concern by the trial judge that the victims of the crimes be informed of the prosecution’s recommendation under a plea agreement did not provide a basis for reversible error based on bias, prejudice or personal knowledge as contemplated by an automatic or statutory recusal in this section. Nichols v. Commonwealth, 839 S.W.2d 263, 1992 Ky. LEXIS 143 ( Ky. 1992 ).

Where judge’s impartiality might reasonably have been questioned in view of all the circumstances the trial judge abused his discretion in denying the defendant’s motion for recusal. Sommers v. Commonwealth, 843 S.W.2d 879, 1992 Ky. LEXIS 137 ( Ky. 1992 ).

Where during trial for trafficking in a controlled substance there were other charges pending against defendant stemming from the burglary of the home of the father of another judge, and judge in the drug case in stating his reasons for refusing to recuse himself said that he had no knowledge about the burglary and had not formed an opinion as to defendant’s guilt and no facts were presented to create an appearance of bias, the judge’s refusal to recuse himself was not error. Webb v. Commonwealth, 904 S.W.2d 226, 1995 Ky. LEXIS 92 ( Ky. 1995 ), modified, 1995 Ky. LEXIS 89 (Ky. Aug. 24, 1995).

It was appropriate for special judge to recuse himself, since he felt he would be unable to impose the death penalty under the circumstances of the case. Tamme v. Commonwealth, 973 S.W.2d 13, 1998 Ky. LEXIS 46 ( Ky. 1998 ), modified, 1998 Ky. LEXIS 110 (Ky. Sept. 3, 1998), cert. denied, 525 U.S. 1153, 119 S. Ct. 1056, 143 L. Ed. 2d 61, 1999 U.S. LEXIS 1229 (U.S. 1999).

Fourth special judge was not required to recuse himself based on information adduced at a hearing for withdrawal of counsel; a judge is only required to recuse himself when biased due to information from extrajudicial sources. Tamme v. Commonwealth, 973 S.W.2d 13, 1998 Ky. LEXIS 46 ( Ky. 1998 ), modified, 1998 Ky. LEXIS 110 (Ky. Sept. 3, 1998), cert. denied, 525 U.S. 1153, 119 S. Ct. 1056, 143 L. Ed. 2d 61, 1999 U.S. LEXIS 1229 (U.S. 1999).

Judge did not err by denying appellee’s motion to retroactively recuse herself because the only prior relationship between the judge and appellants’ daughter was as accountant-client; because all agreed that the judge did not know of the relationship while she presided over the case, there was no risk of injustice to appellee. The judge could not have been actually biased by facts that were not known to her. Petzold v. Kessler Homes, Inc., 303 S.W.3d 467, 2010 Ky. LEXIS 18 ( Ky. 2010 ).

In a zoning dispute, there was no abuse of discretion in a trial judge’s refusal to recuse himself where there was no allegation of actual bias, and a close professional relationship between a city attorney and the judge was insufficient to require recusal under KRS 26A.015 . Snowden v. City of Wilmore, 412 S.W.3d 195, 2013 Ky. App. LEXIS 9 (Ky. Ct. App. 2013).

Circuit judge did not err in refusing to recuse where the employee made no showing of bias, and there was no legal authority or precedent that a judge could not make further rulings in a case once a summary judgment was granted but then vacated and reversed. Lindsey v. Bd. of Trs. of the Univ. of Ky., 552 S.W.3d 77, 2018 Ky. App. LEXIS 74 (Ky. Ct. App. 2018).

16.Grounds.

Since both this section and SCR 4.300, Canon 3C(1) require a judge to disqualify himself where he has knowledge his impartiality might be questioned, where Circuit Judge recused himself after members of the victim’s family questioned his impartiality he had valid reason to recuse himself. Jacobs v. Commonwealth, 947 S.W.2d 416, 1997 Ky. App. LEXIS 7 (Ky. Ct. App. 1997).

Removal of the judge from office was proper under SCR 4.300, Canons 1, 2A, 2D, 3A, 3B(2), 3B(2), 3B(7), 3B(8), 3E(1)(a), 4C(1), and 4C(3)(b)(i) because he, in part, advocated the use of money donated by criminal defendants under a guilty-plea agreement to fund a water park; he was granted improper oversight of a substantial gift from a criminal defendant; he changed the conditions of a defendant’s pretrial release without due process; he failed to disqualify himself in proceedings in which his impartiality could have been questioned; and he engaged in ex parte communications. Alred v. Commonwealth, 2012 Ky. LEXIS 101 (Ky. July 23, 2012), reprinted, 395 S.W.3d 417, 2012 Ky. LEXIS 407 ( Ky. 2012 ), modified, 2012 Ky. LEXIS 406 (Ky. Oct. 25, 2012).

Family court judge did not err in entering an order vacating the court's previous findings of fact, conclusions of law and judgment, and in recusing himself from the case under Ky. Sup. Ct. R. 4.300 Canon 3 because he believed that his ex parte communication with the natural father's counsel regarding proposed changes to the findings of fact without giving the mother's husband an opportunity to respond and object to the proposed changes prior to the entry of the revised findings of fact raised an appearance of impropriety. Penticuff v. Miller, 503 S.W.3d 198, 2016 Ky. App. LEXIS 186 (Ky. Ct. App. 2016).

17.—Insufficient.

A party’s mere belief that the judge will not afford a fair and impartial trial is not sufficient grounds to require recusal. Webb v. Commonwealth, 904 S.W.2d 226, 1995 Ky. LEXIS 92 ( Ky. 1995 ), modified, 1995 Ky. LEXIS 89 (Ky. Aug. 24, 1995).

In a mother’s action to obtain a domestic violence order against their son’s father, the mere fact that the mother was related by marriage to a long-retired Fayette Circuit Court judge was not a grounds under KRS 26A.015(2) to require recusal of all Fayette County judges. Bissell v. Baumgardner, 236 S.W.3d 24, 2007 Ky. App. LEXIS 304 (Ky. Ct. App. 2007).

In an action involving a domestic violence order, a judge was not required to recuse himself merely because the husband, an attorney, had previously practiced before the judge; some showing had to be made of bias or prejudice. Ruby v. Ruby, 2009 Ky. App. LEXIS 11 (Ky. Ct. App. Jan. 23, 2009).

Recusal was not required where no objection was made to a trial judge presiding over a case at the time statements were made relating to an appointment of a city attorney or for the rest of a trial; moreover, the grounds for a recusal sua sponte under KRS 26A.015 were not met. Even if objectionable comments were made, a videotape that included the comments was not included in the record. Taylor v. Carter, 333 S.W.3d 437, 2010 Ky. App. LEXIS 250 (Ky. Ct. App. 2010).

At no point before issuing its final order did the chairman or Judicial Conduct Commission members express a belief that the judge was guilty of violating the Code of Judicial Conduct, nor did they display a bias or antagonism toward the judge that prevented him from receiving a fair judgment. Thus, the Commission members and the chairman did not clearly err by declining to recuse themselves from the judge’s proceedings, KRS 26A.015(2)(a), SCR 4.300, Canon 3E(1)(a). Alred v. Commonwealth, 2012 Ky. LEXIS 101 (Ky. July 23, 2012), reprinted, 395 S.W.3d 417, 2012 Ky. LEXIS 407 ( Ky. 2012 ), modified, 2012 Ky. LEXIS 406 (Ky. Oct. 25, 2012).

In a capital murder case, the court properly denied defendant’s motion for recusal because, although the victims’ mother had appeared previously in front of the judge, the judge was not criticized in the media for awarding custody of one victim to the witness, nor did he use media outlets to justify his custody order after the child was murdered. Dunlap v. Commonwealth, 435 S.W.3d 537, 2013 Ky. LEXIS 292 ( Ky. 2013 ), cert. denied, 574 U.S. 838, 135 S. Ct. 87, 190 L. Ed. 2d 72, 2014 U.S. LEXIS 6466 (U.S. 2014).

Plaintiff's motion for recusal was properly denied because he did not identify any factual basis that would require recusal and the members of the appellate panel were not aware of any facts that would affect their ability to render an impartial decision. Flint v. Coach House, Inc., 2015 Ky. App. LEXIS 166 (Ky. Ct. App. Dec. 4, 2015).

Trial court properly denied a plaintiff's motion to recuse because he did not identify any factual basis that would require recusal and the appellate panel not aware of any facts that would affect its ability to render an impartial decision. Flint v. Coach House, Inc., 2015 Ky. App. LEXIS 169 (Ky. Ct. App. Dec. 4, 2015).

In a case concerning the foreclosure of an airplane, a trial judge did not err by refusing to disqualify himself because the trial court could enter findings of fact and conclusions of law before an airplane owner had an opportunity to submit proposed findings and conclusions. In addition, a finding that a trial court's judgment could have been considered an improper opinion on the merits had no basis in law or logic. Airrich, LLC v. Fortener Aviation, Inc., 489 S.W.3d 254, 2016 Ky. App. LEXIS 61 (Ky. Ct. App. 2016).

Trial judge was not required to recuse as the unsupported conspiracy allegations an unfavorable judgment were not enough to call his impartiality into question. Grubb v. Smith, 523 S.W.3d 409, 2017 Ky. LEXIS 305 ( Ky. 2017 ).

Recusal was properly denied because there was no objective evidence of a special judge’s bias. Clay v. Wesbanco Bank, Inc., 589 S.W.3d 550, 2019 Ky. App. LEXIS 50 (Ky. Ct. App. 2019).

19.Reconsideration of Recusal.

Court erred in not granting a writ of prohibition to prohibit a Circuit Court Judge from further participation in an underlying matter, as the judge had recused himself under KRS 26.015(2)(d)(2) due to a familial relationship with an attorney for a party, and he could not thereafter entertain motions to reconsider the recusal order and to disqualify the attorney to whom he was related. Appalachian Reg'l Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 2007 Ky. LEXIS 244 ( Ky. 2007 ).

20.Procedure.

Although the second of two motions to recuse filed by a driver in a tort action included an affidavit, both motions were filed pursuant to KRS 26A.015 , and as the driver failed to avail herself of the procedure set out in KRS 26A.020 , the trial court was under no obligation to step aside and it could properly rule on the motions. Diaz v. Barker, 254 S.W.3d 835, 2008 Ky. App. LEXIS 144 (Ky. Ct. App. 2008).

Although the trial court had been the Commonwealth Attorney at the time of defendant’s prior conviction, that matter was not the matter in controversy in the present case where defendant had been convicted of first-degree trafficking in a controlled substance and being a persistent felony offender. As a result, even though defendant could have filed a motion to disqualify the trial court from proceeding further in the matter either by filing an affidavit pursuant to KRS 26A.020 or by filing a motion with the trial court under KRS 26A.015 , or both, there was no basis for requiring the trial court’s recusal. Matthews v. Commonwealth, 371 S.W.3d 743, 2011 Ky. App. LEXIS 197 (Ky. Ct. App. 2011).

Cited in:

Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ); Commonwealth v. Reneer, 734 S.W.2d 794, 1987 Ky. LEXIS 232 ( Ky. 1987 ); Storer Communications of Jefferson County, Inc. v. Oldham County Bd. of Educ., 850 S.W.2d 340, 1993 Ky. App. LEXIS 47 (Ky. Ct. App. 1993); Stopher v. Commonwealth, 57 S.W.3d 787, 2001 Ky. LEXIS 66 ( Ky. 2001 ); Persels & Assocs., LLC v. Capital One Bank, (USA), N.A., — S.W.3d —, 2014 Ky. App. LEXIS 24 (Ky. Ct. App. 2014).

Opinions of Attorney General.

This section should be applied in cases that are in any stage of active litigation on and after March 19, 1977. OAG 77-232 .

The pecuniary or proprietary interest in a party to the proceeding referred to in subsection (2)(c) of this section is simply a financial or ownership interest, however small, in a business organization which is a party to the lawsuit and this would include stock ownership, corporate bonds and bank or savings and loan association certificates of deposit; however, ownership in a mutual or common investment fund that holds securities, or a proprietary interest of a policyholder in a mutual insurance company, or a depositor in a mutual savings association if the outcome of the litigation could not substantially affect the value of the interest would be excepted. OAG 77-232 .

The “third degree of relationship” referred to in subsection (2)(d) of this section means within the third degree of relationship as computed by the civil law method. OAG 77-232 .

Under subsection (1)(c) of this section, judge’s ownership of pollution control area revenue bonds which were payable solely from and secured by payments to be received by the county pursuant to a loan agreement with the gas and electric company would be a financial interest and would disqualify such judge from trying a case involving the gas and electric company only if the outcome of the case would substantially affect the value of the judge’s interest. OAG 77-232 .

A Circuit Judge would not be disqualified in any proceedings involving an attorney who is the judge’s brother-in-law but who is not related by blood to the judge or his wife. OAG 77-286 .

Although a trial commissioner would not be prohibited from being appointed as an executor or administrator of an estate, he would have to disqualify himself on any matter involving that estate. OAG 77-450 .

A Circuit Court judge who is a director and stockholder of a coal company would not be disqualified in a civil action where his business partners are representing clients involved in the coal business, as long as the case would not affect the judge’s company in any material way. OAG 77-663 .

There is no impropriety nor conflict in connection with a Circuit Judge’s serving as an executor under a will, even though he charges a fee for his services in carrying out that function; however, should the estate involved in the will of which he is executor constitute the subject matter in a controversy or adverse proceeding in the executor’s Circuit Court, the Circuit Judge would have to disqualify himself in such proceeding because of his apparent pecuniary interest. OAG 82-62 .

Research References and Practice Aids

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 13.

Pennington, Regionalization of Kentucky’s Trial Courts, Vol. 46, No. 3, July, 1982, Ky. Bench & Bar 19.

Northern Kentucky Law Review.

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

ALR

Interest of judge in an official or representative capacity, or relationship of judge to one who is a party in an official or representative capacity, as disqualification. 10 A.L.R.2d 1307.

Relationship to attorney as disqualifying judge. 50 A.L.R.2d 143.

Disqualification in proceeding to punish contempt against or involving judge or court of which he is a member. 64 A.L.R.2d 600; 37 A.L.R.4th 1004.

Prior representation or activity as attorney or counsel as disqualifying judge. 72 A.L.R.2d 443; 16 A.L.R.4th 550.

Disciplinary action against judge on ground of abusive or intemperate language or conduct toward attorneys, court personnel, or parties to or witnesses in actions, and the like, 89 A.L.R.4th 278.

Laws governing judicial recusal or disqualification in state proceeding as violating federal or state constitution, 91 A.L.R.4th 437.

Disqualification of judge as affecting validity of decision in which other nondisqualified judges participated, 29 A.L.R.5th 722.

Disqualification of judge for bias against counsel for litigant, 54 A.L.R.5th 575.

Prior Representation or Activity as Prosecuting Attorney as Disqualifying Judge from Sitting or Acting in Criminal Case, 85 A.L.R.5th 471.

Construction and Application of Rule of Necessity in Judicial Actions, Providing that a Judge Is Not Disqualified to Try a Case Because of Personal Interest If Case Cannot Be Heard Otherwise, 27 A.L.R.6th 403.

Disqualification or Recusal of Judge Due to Comments at Continuing Legal Education (CLE) Seminar or Other Educational Meetings, 49 A.L.R.6th 93.

Construction of provisions in Fed. R. Crim. P. 42(b) that if contempt charges involve disrespect to or criticism of judge, he is disqualified from presiding at trial or hearing except with defendant’s consent. 3 A.L.R. Fed. 420.

26A.020. Designation of retired justice or judge as special judge.

  1. When, from any cause, a judge of any Circuit or District Court fails to attend, or being in attendance cannot properly preside in an action pending in the court, or if a vacancy occurs or exists in the office of circuit or district judge, the circuit clerk shall at once certify the facts to the Chief Justice who shall immediately designate a regular or retired justice or judge of the Court of Justice as special judge. If either party files with the circuit clerk his affidavit that the judge will not afford him a fair and impartial trial, or will not impartially decide an application for a change of venue, the circuit clerk shall at once certify the facts to the Chief Justice who shall immediately review the facts and determine whether to designate a regular or retired justice or judge of the Court of Justice as special judge. Any special judge so selected shall have all the powers and responsibilities of a regular judge of the court.
  2. A retired justice or judge serving as a special judge shall be compensated as provided by KRS 21A.110 .

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 5.

NOTES TO DECISIONS

1.In General.

The power of the legislature to provide for the manner of selecting special judges cannot be questioned. (Decided under prior law)Philpot v. Commonwealth, 240 Ky. 289 , 42 S.W.2d 317, 1931 Ky. LEXIS 387 ( Ky. 1931 ).

2.Constitutionality.

Subsection (1) of this section represents an encroachment by the legislature on the power of the judiciary to make rules and is therefore unconstitutional; the Kentucky Supreme Court extends comity to the legislature and upholds the statute. Foster v. Overstreet, 905 S.W.2d 504, 1995 Ky. LEXIS 98 ( Ky. 1995 ).

3.Application.

Where one of the attorneys was married to the sister of the trial court judge, the correct remedy would be under this section, rather than under subsection (2) of KRS 26A.015 , therefore an action brought under KRS 26A.015 must be dismissed. Middle States Coal Co. v. Cornett, 576 S.W.2d 250, 1978 Ky. App. LEXIS 658 (Ky. Ct. App. 1978).

Although the trial court had been the Commonwealth Attorney at the time of defendant’s prior conviction, that matter was not the matter in controversy in the present case where defendant had been convicted of first-degree trafficking in a controlled substance and being a persistent felony offender. As a result, even though defendant could have filed a motion to disqualify the trial court from proceeding further in the matter either by filing an affidavit pursuant to KRS 26A.020 or by filing a motion with the trial court under KRS 26A.015 , or both, there was no basis for requiring the trial court’s recusal. Matthews v. Commonwealth, 371 S.W.3d 743, 2011 Ky. App. LEXIS 197 (Ky. Ct. App. 2011).

4.Purpose.

Subsection (1) of this section is a safeguard available to defendants for determination before trial of the existence of alleged partiality by the trial court. Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479, 1993 U.S. LEXIS 2856 (U.S. 1993), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

Subsection (1) of this section serves as a safeguard available to defendants for a determination before trial of the existence of any alleged partiality by the trial court. Foster v. Overstreet, 905 S.W.2d 504, 1995 Ky. LEXIS 98 ( Ky. 1995 ).

5.Jurisdiction.

Trial court’s order entered when a KRS 26A.020 disqualification petition was pending was premature, but the defect did not extinguish the otherwise proper order because (1) the trial court had subject matter jurisdiction to decide “this kind of” case, (2) the trial court only lost particular case jurisdiction until the disqualification petition was decided, and, (3) when the Chief Justice denied the petition, the particular case jurisdictional defect was cured. Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 2012 Ky. App. LEXIS 285 (Ky. Ct. App. 2012).

Judgment or order entered while a KRS 26A.020 disqualification petition is pending lacks finality and, likewise, enforcement of that judgment or order is suspended until the Chief Justice renders his or her decision; if the Chief Justice grants the petition, the judgment or order, previously only voidable, is deemed void, and not ab initio, but only upon entry of the Chief Justice’s order, while, if the Chief Justice denies the petition, the judgment or order is afforded full force and effect. Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 2012 Ky. App. LEXIS 285 (Ky. Ct. App. 2012).

6.Procedure for Disqualification.

Subsection (1) of this section provides a separate and distinct opportunity to a party who does not believe he or she will receive a fair and impartial trial. When a party or counsel seeks to disqualify or recuse a judge from proceeding further in any matter, a motion can be filed with the judge under KRS 26A.015 or an affidavit pursuant to this section. It would also appear that an aggrieved party can do either or both. Nichols v. Commonwealth, 839 S.W.2d 263, 1992 Ky. LEXIS 143 ( Ky. 1992 ).

Trial court had jurisdiction to swear the jury and to proceed to trial even though defendant filed a motion pursuant to this section stating that the trial judge would not afford him a fair and impartial trial where proper notice was given by the Chief Justice of denial of the motion before jeopardy attached. Lear v. Commonwealth, 884 S.W.2d 657, 1994 Ky. LEXIS 103 ( Ky. 1994 ).

7.— Failure to Follow.

There was no error committed by the trial court in denying the motion for judge to recuse himself where it was undisputed that the defendant did not raise any such issue on his appeals from the judgment and sentence entered after the first trial, nor did he file a motion pursuant to CR 59.05 to vacate the final judgment or to disqualify the trial judge. Also, the original motion to disqualify was not supported by an affidavit and finally, if defendant had filed a proper motion as required by this section, he could have required the matter to be transmitted to the Chief Justice for an immediate ruling, thereby avoiding what he later claimed was an unfair trial because of a presumptively biased judge. Crane v. Commonwealth, 833 S.W.2d 813, 1992 Ky. LEXIS 78 ( Ky. 1992 ), cert. denied, 506 U.S. 1069, 113 S. Ct. 1020, 122 L. Ed. 2d 167, 1993 U.S. LEXIS 351 (U.S. 1993).

Trial judge had not been obliged to recuse herself for having conducted mediation sessions with the parties, as (1) appellant did not seek recusal before trial pursuant to KRS 26A.020(1); (2) SCR 4.300, Canon 3(B)(7)(d) specifically provided for such mediation; (3) appellant acquiesced in the mediation; and (4) there was no showing of the judge’s bias or partiality. Home Depot, U.S.A., Inc. v. Saul Subsidiary I, Ltd. P'ship, 159 S.W.3d 339, 2004 Ky. App. LEXIS 223 (Ky. Ct. App. 2004).

Although the second of two motions to recuse filed by a party in a tort action included an affidavit, both motions were filed pursuant to KRS 26A.015 , and as the movant failed to avail herself of the procedure set out in KRS 26A.020 , the trial court was under no obligation to step aside and it could properly rule on the motions. Diaz v. Barker, 254 S.W.3d 835, 2008 Ky. App. LEXIS 144 (Ky. Ct. App. 2008).

8.Appointment Power.

This section does not limit the appointment power of the Chief Justice pursuant to Const., § 110 but only establishes a procedure by which it is to be exercised when a judge is actually unavailable to sit, therefore Chief Justice may appoint a district judge as a temporary special circuit judge in order to hear dissolution actions under the authority of the Jefferson Family Court Project. Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

Defendant’s waived his objection to the erroneous appointment of a retired judge by a Chief Regional Circuit Judge, rather than the Chief Justice, when he did not challenge the error at or before trial; moreover as defendant did not allege any prejudice resulting from the appointment, this error did not result in a manifest injustice requiring a review under RCr 10.26. Jacobs v. Commonwealth, 947 S.W.2d 416, 1997 Ky. App. LEXIS 7 (Ky. Ct. App. 1997).

Where the chief regional Circuit Judge appointed a District Judge to expedite some of his cases and that judge was from without rather than within the region, it was not a material departure from the statute or the Regional Administration Program Charter. (Decided under prior law)Huntzinger v. McCrae, 818 S.W.2d 613, 1990 Ky. App. LEXIS 163 (Ky. Ct. App. 1990).

9.Authority.

The Chief Justice of the Supreme Court of Kentucky or his designee has the authority to appoint a retired judge, who is practicing law, as a special judge. Regency Pheasant Run v. Karem, 860 S.W.2d 755, 1993 Ky. LEXIS 96 ( Ky. 1993 ).

Appellants had no right to have a senior judge reappointed to their case as the senior judge had no claim to the case since senior judge assignments were made by the Chief Justice of the Kentucky Supreme Court under KRS 21.580 ; while a properly assigned special judge had all the powers and responsibilities of a regular judge under KRS 26A.020 , those powers and responsibilities were always secondary to those of the regular judge and could only ever come into play when the regular judge was unable to hear the case. Cox v. Braden, 266 S.W.3d 792, 2008 Ky. LEXIS 239 ( Ky. 2008 ).

10.Availability of Remedy.

Because defendant, convicted on five counts of capital murder and sentenced to death, had two other possible remedies available to her of filing a motion under subsection (1) of this section and a constitutional right of appeal from an adverse sentencing decision, the extraordinary measure of the writ of mandamus had to be denied. Foster v. Overstreet, 905 S.W.2d 504, 1995 Ky. LEXIS 98 ( Ky. 1995 ).

11.Objection.

In a divorce proceeding, the mere failure of the trial court to grant pendente lite relief in an amount or amounts which the defendant might consider to have been justly required is not a sufficient indication of prejudice or partiality to require removal of the judge. (Decided under prior law)Mills v. Mills, 429 S.W.2d 852, 1968 Ky. LEXIS 760 ( Ky. 1968 ).

A motion, made after the trial has begun, that the trial judge vacate the bench because of an oral assertion by the defendant’s counsel that the defendant felt that the trial judge had “some personal feelings in this matter” is not sufficient because the motion is not timely, is not in proper form, is not verified, and contains no factual basis for disqualification. (Decided under prior law)Murray v. Commonwealth, 473 S.W.2d 150, 1971 Ky. LEXIS 157 ( Ky. 1971 ).

12.— Time for Making.

Right to object to special judge was waived unless objection was made in lower court. (Decided under prior law)Salyer v. Napier, 51 S.W. 10, 21 Ky. L. Rptr. 172 (1899); Duff v. Hagins, 147 Ky. 246 , 143 S.W. 1059, 1912 Ky. LEXIS 224 ( Ky. 1912 ).

Motion to require judge to vacate the bench must have been made before the appearance to the merits of the action or the submission of preliminary motions preparatory to a trial, unless the affidavit was based on facts discovered after the issue was made. (Decided under prior law)Vance v. Field, 89 Ky. 178 , 12 S.W. 190, 11 Ky. L. Rptr. 388 , 1889 Ky. LEXIS 111 ( Ky. 1889 ); Hargis v. Commonwealth, 135 Ky. 578 , 123 S.W. 239, 1909 Ky. LEXIS 323 ( Ky. 1909 ); Johnson v. Bowling, 181 Ky. 737 , 205 S.W. 927, 1918 Ky. LEXIS 616 ( Ky. 1918 ).

Where Commonwealth’s attorney, with knowledge of trial judge’s relationship to one of the defendants, actively participated in preliminary motions and selection of the jury, a motion to require the judge to vacate the bench came too late. (Decided under prior law)Allen v. Bach, 233 Ky. 501 , 26 S.W.2d 43, 1930 Ky. LEXIS 601 ( Ky. 1930 ).

An objection to the trial judge is a question of jurisdiction and to be available such objection must be before an appearance to the merits of the action or the submission of preliminary motions by either party preparatory to trial. (Decided under prior law)Neace v. Commonwealth, 233 Ky. 545 , 26 S.W.2d 489, 1930 Ky. LEXIS 605 ( Ky. 1930 ).

An objection to the trial judge raises in effect a question of jurisdiction and the objection to be available must be made before an appearance to the merits of the action or the submission of preliminary motions by either party preparatory to a trial. (Decided under prior law)Roberts v. Sturgill, 257 Ky. 194 , 77 S.W.2d 789, 1934 Ky. LEXIS 548 ( Ky. 1934 ).

Objection to a trial judge is a question of jurisdiction and to be available must be made before an appearance to the merits of an action, or before the submission of preliminary motions by either party preparatory to trial. McGill v. Coomer, 309 Ky. 703 , 218 S.W.2d 947, 1949 Ky. LEXIS 1273 ( Ky. 1949 ).

Objection to a trial judge must be made before entrance of general appearance or the submission of preliminary motions preparatory to trial, the theory being that the party, already in possession of facts which he believes should disqualify the judge, must make known these facts at the outset and not wait until the judge has made a ruling against him before moving for disqualification. (Decided under prior law)Harrell v. Middlesboro, 287 S.W.2d 614, 1956 Ky. LEXIS 475 ( Ky. 1956 ).

If a party has knowledge of facts that would disqualify the judge, he must make known these facts at the outset and not wait until the judge has made a ruling against him before moving for disqualification of the judge. (Decided under prior law)Mills v. Mills, 429 S.W.2d 852, 1968 Ky. LEXIS 760 ( Ky. 1968 ).

13.— Grounds.

Where judge who was commonwealth attorney at time defendant killed his father but who was subsequently appointed to the office of judge stated that he had camped on trail of defendant’s father and would camp on defendant’s trail and put him where he belonged, such statement did not show such prejudice as to disqualify him to act as judge in the trial of the defendant for murder. (Decided under prior law)Hargis v. Commonwealth, 135 Ky. 578 , 123 S.W. 239, 1909 Ky. LEXIS 323 ( Ky. 1909 ).

Public denunciation of defendant and expression of belief in defendant’s guilt constituted facts sufficient to require judge to vacate bench, when contained in affidavit in support of motion timely made. (Decided under prior law)Stamp v. Commonwealth, 195 Ky. 404 , 243 S.W. 27, 1922 Ky. LEXIS 374 ( Ky. 1922 ).

Fact that presiding judge in trial of election contest had tried case in which county clerk had been enjoined from printing appellant’s names on the ballots was not sufficient to disqualify judge. (Decided under prior law)Lewis v. Petrey, 216 Ky. 842 , 288 S.W. 755, 1926 Ky. LEXIS 1022 ( Ky. 1926 ).

Judge who was cousin of deceased erred in refusing to vacate bench in murder trial. (Decided under prior law)Bradley v. Commonwealth, 218 Ky. 675 , 291 S.W. 1047, 1927 Ky. LEXIS 219 ( Ky. 1927 ).

Former relationship of client and attorney between litigant and judge is sufficient to support a motion to require the judge to vacate bench in action growing out of case in which he acted as attorney for litigant. (Decided under prior law)Ledford v. Hubbard, 236 Ky. 373 , 33 S.W.2d 345, 1930 Ky. LEXIS 777 ( Ky. 1930 ).

Statement by judge that he was going to disbar attorney if it was the last thing he ever did was sufficient to show prejudice and it was error for him to overrule motion requiring him to vacate. (Decided under prior law)Clarke v. Commonwealth, 259 Ky. 572 , 82 S.W.2d 823, 1935 Ky. LEXIS 357 ( Ky. 1935 ).

Fact that plaintiffs had filed motions in Court of Appeals to compel Circuit Judge to decide preliminary motions was not sufficient to indicate that judge would be prejudiced or biased in the trial. (Decided under prior law) Campbell v. Combs, 273 Ky. 404 , 116 S.W.2d 955, 1938 Ky. LEXIS 648 ( Ky. 1938 ).

Allegations that judge had conversed with friends of defendant indicted for murder, and of a mere rumor of judge’s alleged statement that defendant, because of deceased’s brutality, was justified in killing deceased, were not allegations of facts showing legal basis for removal. (Decided under prior law)Commonwealth ex rel. Cooper v. Howard, 276 Ky. 299 , 124 S.W.2d 86, 1939 Ky. LEXIS 519 ( Ky. 1939 ).

To prevent a miscarriage of justice, a question or method of practice may sometimes be suggested by the judge without disqualifying him, but that power should be very sparingly used, since a judge may not act in the dual capacity of judge and advocate. (Decided under prior law)Evans v. Humphrey, 281 Ky. 254 , 135 S.W.2d 915, 1940 Ky. LEXIS 22 ( Ky. 1940 ).

Where presiding judge owned a small corporation and served as an officer and director thereof and the prosecuting witness in a criminal case was also an officer-director of such corporation the judge should vacate the bench, on motion of the defendant. (Decided under prior law)Brunner v. Commonwealth, 395 S.W.2d 382, 1965 Ky. LEXIS 145 ( Ky. 1965 ), overruled, Whitler v. Commonwealth, 810 S.W.2d 505, 1991 Ky. LEXIS 74 ( Ky. 1991 ).

A party’s mere belief that the judge will not afford a fair and impartial trial is not sufficient; the asserted belief must be predicated upon stated facts showing bias or prejudice sufficient to prevent the judge from fairly or impartially trying the case. (Decided under prior law)Howerton v. Price, 449 S.W.2d 746, 1970 Ky. LEXIS 470 ( Ky. 1970 ).

The defendant’s motion to vacate judgment on the ground that the judge refused to vacate the bench was not sustained where the allegations revealed that the judge did nothing more than his duty in the numerous situations detailed in the motion to vacate. (Decided under prior law)McCarthy v. Commonwealth, 450 S.W.2d 534, 1970 Ky. LEXIS 458 ( Ky. 1970 ).

Where the judge presiding in a divorce proceedings was married to the first cousin of the husband, a motion by the wife to vacate the bench should have been granted. (Decided under prior law)Wells v. Walter, 501 S.W.2d 259, 1973 Ky. LEXIS 129 ( Ky. 1973 ).

14.— Waiver.

The right of a party to an action or proceeding to avail himself of the privilege of filing an affidavit requesting the retirement of the presiding judge may be waived. (Decided under prior law)Roberts v. Sturgill, 257 Ky. 194 , 77 S.W.2d 789, 1934 Ky. LEXIS 548 ( Ky. 1934 ).

Where defendant, without objection, appeared before regular judge of court and made response to plaintiff’s motion for a rule to enforce giving of depositions, defendant thereby waived his right to have the judge vacate the bench. (Decided under prior law)Crook v. Schumann, 292 Ky. 750 , 167 S.W.2d 836, 1942 Ky. LEXIS 150 ( Ky. 1942 ).

15.Affidavit.

The truth of facts alleged in an affidavit in support of a motion requiring judge to vacate the bench must be assumed. (Decided under prior law)Vance v. Field, 89 Ky. 178 , 12 S.W. 190, 11 Ky. L. Rptr. 388 , 1889 Ky. LEXIS 111 ( Ky. 1889 ). See Powers v. Commonwealth, 114 Ky. 237 , 70 S.W. 1050, 70 S.W. 644, 71 S.W. 494, 24 Ky. L. Rptr. 1007 , 24 Ky. L. Rptr. 1186 , 24 Ky. L. Rptr. 1350 , 1902 Ky. LEXIS 153 ( Ky. 1902 ); Ketcham v. Commonwealth, 210 Ky. 469 , 276 S.W. 139, 1925 Ky. LEXIS 709 ( Ky. 1925 ); Jasper v. Jasper, 229 Ky. 137 , 16 S.W.2d 787, 1929 Ky. LEXIS 703 ( Ky. 1929 ); Neace v. Commonwealth, 243 Ky. 149 , 47 S.W.2d 995, 1932 Ky. LEXIS 48 ( Ky. 1932 ).

A judge may not fine a litigant for contempt for filing an affidavit asking that he vacate the bench. (Decided under prior law)Williams v. Howard, 270 Ky. 728 , 110 S.W.2d 661, 1937 Ky. LEXIS 149 ( Ky. 1937 ).

Where a Circuit Court granted a father’s motion for a modification to give him custody of his child, and the mother of the child sought an order of prohibition against the judge of the court to prevent him from enforcing the order and from presiding over any future proceedings in the matter, the Court of Appeals regarded the latter request as an effort to swear the judge off the bench, which was premature, since the mother did not file her affidavit in accordance with the provisions of former law providing procedure for disqualification of a judge, and therefore, the request was denied. (Decided under prior law) Pace v. Wolfinbarger, 420 S.W.2d 561, 1967 Ky. LEXIS 112 ( Ky. 1967 ).

After the filing of an affidavit to disqualify, the trial judge is without further jurisdiction to proceed in the matter until the Chief Justice acts or until a special judge is designated. (Decided under prior law)Jackson v. Commonwealth, 806 S.W.2d 643, 1991 Ky. LEXIS 34 ( Ky. 1991 ).

The Circuit Judge does not have a hearing on the affidavit to disqualify. If it is sufficient on its face he has no alternative but to step aside or to stay proceedings pending determination of the challenge. (Decided under prior law)Jackson v. Commonwealth, 806 S.W.2d 643, 1991 Ky. LEXIS 34 ( Ky. 1991 ).

16.— Contents.

The affidavit must state the facts upon which the belief that the judge will not give the litigant a fair trial are based and they must be of such a character as should prevent the judge from properly presiding in the case. (Decided under prior law)German Ins. Co. v. Landram, 88 Ky. 433 , 11 S.W. 367, 10 Ky. L. Rptr. 1039 , 1889 Ky. LEXIS 53 ( Ky. 1889 ).

The truth of the facts alleged in an affidavit to support a motion requiring the judge to vacate the bench must be assumed and the facts cannot be put in issue or called in question by the judge. (Decided under prior law)Jasper v. Jasper, 229 Ky. 137 , 16 S.W.2d 787, 1929 Ky. LEXIS 703 ( Ky. 1929 ); Neace v. Commonwealth, 243 Ky. 149 , 47 S.W.2d 995, 1932 Ky. LEXIS 48 ( Ky. 1932 ).

Affidavit which, in addition to generalities, charged that judge counseled and advised relatives of deceased was sufficient to support a motion to require the judge to vacate. (Decided under prior law)Neace v. Commonwealth, 243 Ky. 149 , 47 S.W.2d 995, 1932 Ky. LEXIS 48 ( Ky. 1932 ).

An affidavit which contained only a vague unfounded conclusion on the part of counsel but set forth no tangible reason for judge to vacate the bench was insufficient. (Decided under prior law)Michael v. Michael, 277 Ky. 820 , 127 S.W.2d 864, 1939 Ky. LEXIS 739 ( Ky. 1939 ).

Affidavit that charged that the chancellor had presided in other litigation between the same parties in which the appellants were unsuccessful did not contain facts which necessarily showed prejudice or bias sufficient to prevent the judge from fairly or impartially trying the case. (Decided under prior law)Johnson v. Ducobu, 258 S.W.2d 509, 1953 Ky. LEXIS 855 ( Ky. 1953 ).

Although all facts stated in an affidavit must be considered as true for the purpose of a motion to vacate the bench, the affidavit must contain facts which necessarily show prejudice or bias sufficient to prevent the judge from fairly or impartially trying the case. (Decided under prior law)Johnson v. Ducobu, 258 S.W.2d 509, 1953 Ky. LEXIS 855 ( Ky. 1953 ).

Motion to have judge vacate bench is contemptuous where it contains scandalous, defamatory and offensive personal charges which cannot be construed as statements of facts or if it contains impertinent accusations and innuendoes relating to or involving judicial acts, or impugning the integrity of the judge or reflecting on his character or amounting to disrespect for judicial dignity or implication of dishonesty and corruption in office and belief of the affiant that the charges are true is no excuse or justification in law. (Decided under prior law)Lewis v. Rice, 261 S.W.2d 804, 1953 Ky. LEXIS 1058 ( Ky. 1953 ).

Motion to have judge vacate bench which stated that the trial judge and defendants belonged to the same political party and judge because of this had been advising defendants as to strategy of defense and that the purpose of the judge was to exercise the power of his office in this cause to help him maintain his influence, control and position over the county political organization and that it was the intent and purpose of the judge to act as a political partisan of the defendants and decide the issues in their favor because of the political advantage he believes will accrue to him regardless of the merits was contemptuous. (Decided under prior law)Lewis v. Rice, 261 S.W.2d 804, 1953 Ky. LEXIS 1058 ( Ky. 1953 ).

Where affidavit of appellant alleging prejudice on part of trial judge stated that action of trial judge in having him transferred from one jail to another was prejudiced but KRS 441.030 (now KRS 441.520 ) authorized such transfer, that judge had fixed idea about lack of merit in appellant’s claim of former jeopardy but the claim in fact had no merit, and that judge refused to allow execution of a bond but no effort was made to obtain a bond, such affidavit failed to state facts that would sustain allegation of prejudice. (Decided under prior law)Foster v. Commonwealth, 348 S.W.2d 759, 1961 Ky. LEXIS 31 ( Ky. 1961 ), cert. denied, 368 U.S. 993, 82 S. Ct. 613, 7 L. Ed. 2d 530, 1962 U.S. LEXIS 1855 (U.S. 1962).

Though facts stated in affidavit must be accepted as true, the simple allegation of prejudice is not sufficient since the affidavit must contain facts which necessarily show prejudice or bias. (Decided under prior law)Foster v. Commonwealth, 348 S.W.2d 759, 1961 Ky. LEXIS 31 ( Ky. 1961 ), cert. denied, 368 U.S. 993, 82 S. Ct. 613, 7 L. Ed. 2d 530, 1962 U.S. LEXIS 1855 (U.S. 1962).

Where a pending divorce action involved the same defendant whom the presiding judge counseled as attorney when a prior divorce action was pending between the same parties, a statement of such facts in the affidavit was sufficient to support an allegation of bias. (Decided under prior law)Howerton v. Price, 449 S.W.2d 746, 1970 Ky. LEXIS 470 ( Ky. 1970 ).

17.— Sufficiency.

An affidavit in support of a motion to require the judge to vacate the bench that was based almost entirely on hearsay evidence and did not state facts to support the belief that the judge would not give affiant a fair trial was insufficient. (Decided under prior law)Schmidt v. Mitchell, 101 Ky. 570 , 41 S.W. 929, 19 Ky. L. Rptr. 763 , 1897 Ky. LEXIS 223 ( Ky. 1897 ).

Where Court of Appeals held that affidavit filed by defendant was sufficient to require the Circuit Judge to vacate the bench on return of the case to the Circuit Court it was incumbent on the Circuit Judge to vacate the bench in obedience to the mandate of the appellate court. (Decided under prior law)Commonwealth v. Cantrill, 74 S.W. 691, 25 Ky. L. Rptr. 20 , 1903 Ky. LEXIS 378 ( Ky. 1903 ).

Where affidavit was sufficient, refusal of judge to vacate bench was reversible error of itself, though no other error appeared. (Decided under prior law)Kentucky Journal Pub. Co. v. Gaines, 139 Ky. 747 , 110 S.W. 268, 33 Ky. L. Rptr. 402 , 1908 Ky. LEXIS 15 ( Ky. 1908 ); Stamp v. Commonwealth, 195 Ky. 404 , 243 S.W. 27, 1922 Ky. LEXIS 374 ( Ky. 1922 ); Bradley v. Commonwealth, 218 Ky. 675 , 291 S.W. 1047, 1927 Ky. LEXIS 219 ( Ky. 1927 ).

An affidavit which stated that the judge had a political bias and enmity toward the defendant and that he had openly asserted his belief in the genuineness of a signature and letter in controversy was sufficient to support a motion to vacate the bench. (Decided under prior law)Kentucky Journal Pub. Co. v. Gaines, 139 Ky. 747 , 110 S.W. 268, 33 Ky. L. Rptr. 402 , 1908 Ky. LEXIS 15 ( Ky. 1908 ).

An affidavit which contained mere conclusions of the affiant was insufficient for such affidavit must be such as to necessarily show prejudice against the affiant by the judge and sufficient to prevent him from fairly and impartially trying the case. (Decided under prior law)Chreste v. Commonwealth, 178 Ky. 311 , 198 S.W. 929, 1917 Ky. LEXIS 731 ( Ky. 1917 ).

A preannounced disposition of a judge to prosecute and punish, if found guilty, members of the bar who engage in unethical practices was not sufficient to disqualify him from acting as judge in a disbarment proceeding. (Decided under prior law)Chreste v. Commonwealth, 178 Ky. 311 , 198 S.W. 929, 1917 Ky. LEXIS 731 ( Ky. 1917 ).

Affidavit that stated the judge, who was Commonwealth attorney before becoming judge, signed the indictment against defendant did not state facts to sufficiently show prejudice or bias on judge’s part in order to prevent him from fairly and impartially trying the case.(Decided under prior law) Eastridge v. Commonwealth, 195 Ky. 126 , 241 S.W. 806, 1922 Ky. LEXIS 279 ( Ky. 1922 ).

Judge properly overruled motion to vacate the bench where affidavit in support of the motion stated that judge had political bias and enmity towards defendant, and had been in conference with the Commonwealth’s attorney relative to the case, and after the indictment had been drawn judge set aside a prior order admitting the defendant to bail in the sum of $15,000 and procured affiant’s rearrest and denied him bail in any sum. Nelson v. Commonwealth, 202 Ky. 1 , 258 S.W. 674, 1924 Ky. LEXIS 656 ( Ky. 1 924 ).

The mere fact of entertaining an opinion as to the defendant’s guilt was not sufficient of itself to require the presiding judge to vacate the bench. (Decided under prior law)Nelson v. Commonwealth, 202 Ky. 1 , 258 S.W. 674, 1924 Ky. LEXIS 656 ( Ky. 1 924 ).

An affidavit to be sufficient must have set forth facts which must not have been mere conclusions of the affiant but must have been such as to necessarily have shown bias or prejudice against affiant by the judge and sufficient to have prevented him from fairly and impartially trying the case. (Decided under prior law)Lewis v. Petrey, 216 Ky. 842 , 288 S.W. 755, 1926 Ky. LEXIS 1022 ( Ky. 1926 ).

An affidavit which contained mere conclusions of the affiant was insufficient, for an affidavit must have contained facts that would have disqualified the judge from presiding in the trial of the case. (Decided under prior law)Lilly v. O'Brien, 224 Ky. 474 , 6 S.W.2d 715, 1928 Ky. LEXIS 644 ( Ky. 1928 ).

18.— Time for Making.

A motion to require a judge to vacate the bench must have been made before an appearance to the merits or submission of preliminary motions by either party preparatory to trial. (Decided under prior law)German Ins. Co. v. Landram, 88 Ky. 433 , 11 S.W. 367, 10 Ky. L. Rptr. 1039 , 1889 Ky. LEXIS 53 ( Ky. 1889 ); Littleton v. Littleton, 229 Ky. 353 , 17 S.W.2d 204, 1929 Ky. LEXIS 745 ( Ky. 1929 ), overruled, Bobbitt v. Bobbitt, 297 Ky. 28 , 178 S.W.2d 986, 1944 Ky. LEXIS 676 ( Ky. 1944 ).

19.— Contempt.

Filing of affidavit in support of motion which required judge to vacate bench, though made too late, would not constitute contempt. (Decided under prior law)Adams v. Gardner, 176 Ky. 252 , 195 S.W. 412, 1917 Ky. LEXIS 20 ( Ky. 1917 ).

Pertinent and relative facts contained in an affidavit in support of a motion which required judge to vacate bench would never constitute contempt, but if in addition the affidavit included derogatory and defamatory matter reflecting upon the honesty and integrity of the court not only as an individual but as a sworn officer, a contempt was committed, since such language was unnecessary to constitute a proper affidavit. (Decided under prior law)Huggins v. Field, 196 Ky. 501 , 244 S.W. 903, 1922 Ky. LEXIS 539 ( Ky. 1922 ).

20.Refusal to Vacate.

Where affidavit is sufficient, refusal of judge to vacate bench is reversible error, of itself, though no other error appears. (Decided under prior law)Brock v. Williams, 260 Ky. 569 , 86 S.W.2d 324, 1935 Ky. LEXIS 524 ( Ky. 1935 ).

Writ of prohibition was issued where judge improperly refused to vacate bench. (Decided under prior law)Evans v. Humphrey, 281 Ky. 254 , 135 S.W.2d 915, 1940 Ky. LEXIS 22 ( Ky. 1940 ).

21.Powers of Special Judge.

A special judge could call a special term and could extend a term for the purpose of completing a trial in progress. (Decided under prior law)Hall v. Eversole's Adm'r, 251 Ky. 296 , 64 S.W.2d 891, 1933 Ky. LEXIS 851 ( Ky. 1933 ).

Cited:

Middle States Coal Co. v. Cornett, 584 S.W.2d 593, 1978 Ky. App. LEXIS 681 (Ky. Ct. App. 1978); Gladish v. Gladish, 741 S.W.2d 658, 1987 Ky. App. LEXIS 512 (Ky. Ct. App. 1987); Commonwealth v. Stevens, 489 S.W.3d 755, 2016 Ky. App. LEXIS 141 (Ky. Ct. App. 2016); Augenstein v. Deutsche Bank Nat'l Trust Co., 2021 Ky. App. LEXIS 116 (Ky. Ct. App. Nov. 5, 2021).

Opinions of Attorney General.

Since retired justices or judges of the Court of Justice who serve as special judges pursuant to this section are temporary agents rather than officers, they may serve on executive boards and agencies, provided of course that they comply with the Code of Judicial Conduct. OAG 94-5 .

Research References and Practice Aids

Northern Kentucky Law Review.

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

ALR

Mandamus as remedy to compel assertedly disqualified judge to excuse self or to certify his disqualification. 45 A.L.R.2d 937; 56 A.L.R. Fed. 494.

Time for asserting disqualification. 73 A.L.R.2d 1238.

Prohibition as appropriate remedy to prevent allegedly disqualified judge from proceeding with case. 92 A.L.R.2d 306.

Intervenor’s right to disqualify judge. 92 A.L.R.2d 1110.

Construction and Validity of State Provisions Governing Designation of Substitute, Pro Tempore, or Special Judge, 97 A.L.R.5th 537.

26A.030. Successor of judge may sign orders.

Upon the death of a judge, or when from any cause the office is vacant, or when the judge is absent, his replacement or successor, no matter how chosen, may sign any orders of court left unsigned by his predecessor, the same as his predecessor might have done.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 6.

26A.040. Proceedings in court having divisions.

  1. Proceedings in any court having divisions shall be valid when prosecuted in any division thereof.
  2. Any judge presiding over a division of a court mentioned in subsection (1) may hear and determine any case or question in any other division.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 3, effective January 2, 1978.

NOTES TO DECISIONS

1.Jurisdiction of Different Judge.

In order for a particular judge to appeal the issuance of a writ of prohibition against enforcing an order of the judge, the judge must make some showing that the court has been aggrieved; however, any judge in any division of a particular court may have decided any case or question in any other division of that court, and thus an order prohibiting an original judge from reinstating a sentence which was modified by a different judge was affirmed. Mullins v. Hess, 131 S.W.3d 769, 2004 Ky. App. LEXIS 88 (Ky. Ct. App. 2004).

2.Transfer.

Mandamus relief was properly denied as: (1) the transfer of a case between divisions due to a conflict was contemplated by SCR 1.040(3)(d), and KRS 26A.040 ; (2) appellants did not prove that a new judge never sat as a judge; (3) although both of the division’s trial court judges recused themselves, the case remained in the division; (4) appellants had no right to have a senior judge reappointed after the new judge went into the military; and (5) the practice of transferring the case was not inappropriate, and was not such a departure from standard procedure as to do violence to the administration of justice. Cox v. Braden, 266 S.W.3d 792, 2008 Ky. LEXIS 239 ( Ky. 2008 ).

26A.080. Judicial officer to report unprofessional conduct of justice, judge, or attorney.

When it comes to the attention of any judicial officer that any justice or judge of the Court of Justice or any attorney may have been guilty of unprofessional conduct, he shall at once report the matter to the proper investigating and disciplinary authorities.

History. Enact. Acts 1976 (Ex. Sess.), ch. 18, § 1.

Facilities and Services

26A.090. Definitions for KRS 26A.090 to 26A.115.

As used in KRS 26A.090 to 26A.115 , unless the context otherwise requires:

  1. “Operating costs allowance” means compensation equivalent to the annual expenses borne by the unit of government for utilities, janitorial service, rent, insurance, and necessary maintenance, repair, and upkeep of the court facility which do not increase the permanent value or expected life of the court facility, but keeps it in efficient operating condition, and, at the election of the Administrative Office of the Courts, capital costs of interior or mechanical renovations for the benefit of the court.
  2. “Use allowance” means compensation equal to four percent (4%) annually of the total original capital costs and the cost of capitalized renovation of the court facility, except that if indebtedness has been incurred in respect to such capital costs at an interest rate equal to or greater than seven percent (7%), compensation shall be at a rate of eight percent (8%) annually of that portion of the capital costs for which the rate applies. For refinanced projects constructed or renovated prior to July 1, 1994, the use allowance payment shall not change for the term of the original bond issue, unless there is a change in the space occupied. For court facilities renovated or constructed after July 1, 1994, “use allowance” means the court’s proportional share of the annual principal and interest cost in connection with the renovation or construction, but not to exceed eight percent (8%) annually of capital costs, or, if there is no debt, four percent (4%) annually of capital costs. Beginning with court facility construction or renovation projects authorized by the 2000 Regular Session of the General Assembly, “use allowance” means the court’s proportional share of the annual principal and interest costs in connection with the construction or renovation of the facility, not to exceed the authorized annual use allowance.
  3. “Capital costs” means the costs borne by the unit of government, excluding grants, conditioned by the grantor agency specifically for court facility construction or renovation, for acquisition of property and for construction and capitalized renovation including interest accruing during construction or renovation, but no other interest of each court facility. If capital costs are not documented, reasonable estimates provided by qualified appraisers will suffice. After July 14, 2000, capital costs, for the purpose of computing the maximum annual use allowance, shall not exceed the project scope as authorized by the General Assembly in the judicial branch budget or as increased and approved under KRS 26A.164 .
  4. “Capitalized renovation” means all remodeling involving the structural or mechanical systems, except for remodeling that involves substantial demolition of the original structure. Remodeling involving substantial demolition of the original structure shall constitute construction resulting in a new court facility.
  5. “Unit of government” means a county, city, urban-county government, special district, or corporate entity created for the purpose of constructing or holding title to a court facility.
  6. “Court facility” means the land and buildings owned or operated by a unit of government in which space for the court of justice is provided. Judges’ benches, jury and witness boxes, and fixed seating shall be considered as permanent building fixtures.
  7. “Court facilities standards committee” means a committee consisting of the Chief Justice or his designee; one (1) judge each of the Court of Appeals, the Circuit Court, and the District Court appointed by the Supreme Court; the president of the Circuit Clerks’ Association; the chairmen of the House and Senate Judiciary Committees of the General Assembly; the secretary of the Finance and Administration Cabinet; the director of the Administrative Office of the Courts; and a county judge/executive appointed by the Governor. Each appointed member shall serve for a term of four (4) years from the date of his appointment or until he vacates the office in respect to which he was appointed, whichever is earlier.

History. Enact. Acts 1978, ch. 336, § 1, effective July 1, 1978; 1982, ch. 449, § 2, effective July 15, 1982; 1994, ch. 294, § 1, effective July 1, 1994; 1998, ch. 28, § 1, effective March 6, 1998; 2000, ch. 496, § 1, effective July 14, 2000.

NOTES TO DECISIONS

Cited:

Colvin v. Commonwealth, 570 S.W.2d 281, 1978 Ky. LEXIS 388 ( Ky. 1978 ), overruled, Commonwealth v. McFerron, 680 S.W.2d 924, 1984 Ky. LEXIS 274 ( Ky. 1984 ), overruled in part, Commonwealth v. McFerron, 680 S.W.2d 924, 1984 Ky. LEXIS 274 ( Ky. 1984 ).

Research References and Practice Aids

2020-2022 Budget Reference.

See Judicial Branch Budget, 2021 Ky. Acts ch. 170, Pt. I, A, 1, b, (5), (a) at 1168.

Kentucky Bench & Bar.

Palmore, Kentucky’s New Court System a Model for Southeastern States, Vol. 43, No. 1, January, 1979, Ky. Bench & Bar 17.

26A.100. Places of holding court — Facilities to be furnished by local governmental units — Procedure when local public facilities not available.

  1. The Circuit and the District Court shall be held in the county courthouse of each county unless otherwise ordered by the Supreme Court in which case it may be held at any other location made available by the county and owned, leased, or controlled by the county. Circuit or District Court may also be held in such other locations in the county as may be convenient and approved by the Supreme Court.
  2. Every county or urban-county government shall provide such reasonably available space which would not disrupt the operation of county government as necessary in the county courthouse, or in other county facilities as permitted in subsection (1) of this section, for:
    1. A courtroom or courtrooms for the Circuit and the District Court;
    2. Chambers for the Circuit Judge and District Judge or Judges;
    3. Office space for the Circuit and District Court staffs;
    4. Office and storage space for the circuit clerk’s operations;
    5. Jury facilities for the Circuit and the District Court;
    6. Office space for other officers of the Court of Justice including pretrial release officers, court reporters, court administrators, judges’ secretaries, friends of the court and commissioners; and
    7. Such other facilities necessary for the operation of the Circuit and the District Court as may be agreed upon by the county or urban-county government and the Administrative Office of the Courts.
  3. If all necessary facilities for the holding of Circuit or District Court, for the clerk’s operations, or for the operation of the court or its ancillary functions, are not available in county facilities, every city shall, upon request of the Administrative Office of the Courts, provide such reasonably available space which would not disrupt the operation of city government as necessary in the city’s facilities for the operations of Circuit or District Court, or both. The city shall be responsible for providing space for the operations listed in subsection (2) of this section.
  4. If all necessary facilities for the holding of Circuit or District Court, for the clerk’s operations, or for the operation of the court or its ancillary functions, are not available in county or city facilities, every agency of state government, special district, and independent agency of local government, other than a city, may, upon the request of the Administrative Office of the Courts, provide such space as necessary in facilities owned, leased, or controlled by such organization for the operations of Circuit or District Court, or both. The agency may provide space for the operations listed in subsection (2) of this section.
  5. If all necessary facilities for the holding of Circuit or District Court, for the clerk’s operations, or for the operation of the court or its ancillary functions, are not available in public facilities, private facilities may be rented, leased, purchased, or otherwise acquired, by the Administrative Office of the Courts pursuant to permission granted by the Chief Justice for such acquisition and in compliance with the provisions of KRS Chapters 45 and 56.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 7, effective November 1, 1977; 1978, ch. 336, § 2, effective July 1, 1978; 1982, ch. 449, § 3, effective July 15, 1982.

Opinions of Attorney General.

This section does not mandate the placing of the Circuit and District Courts on the same floor or placing them in the same courtroom. OAG 77-177 .

The legislature intended to weigh the sheer urgency of housing the new court system against the housing of necessary and vital county governmental operations in county courthouses and other county buildings and the housing of the new court system was to be given a high priority, subject to the principle that necessary county governmental operations would not be disrupted. OAG 78-116 .

The provision that the county shall provide such “reasonably available space” to the court system indicates that the initial determination of whether reasonably available space exists in a particular county is addressed, not to the judicial courts, but to the fiscal courts, and the fiscal court’s decision in this matter is final, except where the courts determine in an appropriate suit that the fiscal court acted arbitrarily in determining that the space was not reasonably available for the courts. OAG 78-116 .

If a county cannot provide satisfactory office space for the Circuit Judge, and no public facilities are available as provided in subsections (3) and (4) of this section, then under subsection (5) of this section, private facilities may be leased for the judge by the Finance Department. OAG 82-14 .

If a fiscal court is leasing courthouse space to the Circuit Judge, the fiscal court could not terminate this lease and use this office space for other county offices. OAG 82-14 .

Where a Circuit Court is being held in a county courthouse, the fiscal court is, as a practical matter, required by subsection (2) of this section to also provide a Circuit Judge’s chambers or office in the courthouse. OAG 82-14 .

Assuming that the Supreme Court of Kentucky has not ordered nor approved otherwise, the county government is mandated to furnish reasonably available space, as necessary, in the county courthouse, for the court system, as described in subsection (2) of this section, which would not disrupt the operation of county government. OAG 84-159 .

It is clear from reading subsection (1) of this section that the county courthouse is the prime sought location of the local courts and the adjunctive operations, and the county, through the fiscal court, must provide such location, where the needed space is reasonably available and would not disrupt the operation of county government. OAG 84-159 .

The provision that the county shall provide such reasonably available space to the court system indicates that the initial determination of whether reasonably available space exists in a particular county is addressed to the fiscal court; its decision is final, except where the courts determine, in appropriate litigation, that the fiscal court acted arbitrarily. OAG 84-159 .

Considering that the adequate housing of the court and the jail systems are to be given a high priority, under KRS 67.080 , 67.083 and this section, the fiscal court of any county has the authority to allocate space in the county courthouse or its county buildings for the court and jail systems; its exercise of such authority can only be reversed by the courts, in a proper law suit, where the courts deem that the fiscal court has acted arbitrarily in its allocation decisions. OAG 84-263 .

The first or immediate level of responsibility for furnishing space to the court system rests with the county government, and the initial determination of whether “reasonably available space” exists in a particular county facility is addressed to the appropriate fiscal court; therefore, unless the Kentucky Supreme Court has ordered otherwise, the county government is required to furnish reasonably available space in the county courthouse facilities. OAG 96-18 .

Research References and Practice Aids

Kentucky Bench & Bar.

Palmore, Kentucky’s New Court System a Model for Southeastern States, Vol. 43, No. 1, January, 1979, Ky. Bench & Bar 17.

26A.105. Long-term lease agreements. [Repealed.]

Compiler’s Notes.

This section (Acts 1978, ch. 336, § 4, effective July 1, 1978) was repealed by Acts 1982, ch. 449, § 17, effective July 15, 1982.

26A.107. Periodic review of court facilities — Use allowance payment on construction contracted for after July 1, 1978.

  1. The Court Facilities Standards Committee shall provide for periodic review of each court facility and may make recommendations for improvements.
  2. No use allowance shall be paid respecting any capital costs contracted for any court facility after July 1, 1978, unless the construction or renovation receives prior concurrence by the Court Facilities Standards Committee.

History. Enact. Acts 1978, ch. 336, § 5, effective July 1, 1978.

Research References and Practice Aids

Kentucky Bench & Bar.

Palmore, Kentucky’s New Court System a Model for Southeastern States, Vol. 43, No. 1, January, 1979, Ky. Bench & Bar 17.

26A.110. Utilities and janitorial services furnished by counties, urban-county governments, and cities.

Counties, urban-county governments, and cities providing space for court operations pursuant to KRS 26A.100 shall also provide adequate:

  1. Lighting;
  2. Heating;
  3. Electricity;
  4. Other utilities, except telephone service; and
  5. Janitorial services

as an adjunct to the providing of space required by that section.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 8, effective November 1, 1977.

26A.115. Operating costs allowance and use allowance payments.

  1. Each unit of government providing space in a court facility to the Court of Justice under the provisions of KRS 26A.100 shall be paid an operating costs allowance plus a use allowance to be administered by the Administrative Office of the Courts.
  2. The precise amount paid for operating costs allowance and use allowance shall be computed by allocating to the Court of Justice its proportionate share of each category according to the relative portion of the floor space in the facility which is occupied by the Court of Justice. Compensation shall be calculated on an annualized basis, may be in the form of rental per square footage, and shall be paid quarterly. Should the availability of space provided to the Court of Justice be limited by the governmental unit to a part-time basis, the compensation shall be apportioned according to the number of days or partial days per week in which it is made available, one (1) day or partial day per week being considered as one-fifth (0.2) of the time.
  3. If requested by a unit of government, operating costs allowance and use allowance payments due in accordance with subsection (2) of this section shall be due and payable to the unit of government not less than ten (10) days prior to the interest due date for the bonds, notes, or other debt obligations issued to finance the capital costs for court facility space provided to the Court of Justice by the requesting unit of government.

History. Enact. Acts 1978, ch. 336, § 3, effective July 1, 1978; 1982, ch. 449, § 4, effective July 15, 1982; 1994, ch. 294, § 2, effective July 1, 1994.

Research References and Practice Aids

Kentucky Bench & Bar.

Palmore, Kentucky’s New Court System a Model for Southeastern States, Vol. 43, No. 1, January, 1979, Ky. Bench & Bar 17.

26A.120. Purchase of equipment — Extraordinary specialized facilities or services.

  1. As of January 1, 1978, all new equipment purchases for the Court of Justice shall be made by the Court of Justice and paid from state or other available funds.
  2. The Court of Justice may contract with a local unit of government to furnish extraordinary specialized facilities or services.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 72, effective January 2, 1978.

26A.130. Conveyance of court facility to Commonwealth.

A court facility which is entirely dedicated to Court of Justice purposes may be conveyed to the Commonwealth for court purposes with or without consideration. Provided, however, that no such conveyance shall be accepted by the Commonwealth unless the Administrative Office of the Courts has certified its agreement to maintain the facility.

History. Enact. Acts 1982, ch. 449, § 5, effective July 15, 1982.

26A.140. Accommodation of special needs of children.

  1. Courts shall implement measures to accommodate the special needs of children which are not unduly burdensome to the rights of the defendant, including, but not limited to:
    1. Trained guardians ad litem or special advocates, if available, shall be appointed for all child victims and shall serve in Circuit and District Courts to offer consistency and support to the child and to represent the child’s interests where needed.
    2. During trials involving child victims or child witnesses, the environment of the courtroom shall be modified to accommodate children through the use of small chairs, frequent breaks, and the use of age appropriate language.
    3. Children expected to testify shall be prepared for the courtroom experience by the Commonwealth’s or county attorney handling the case with the assistance of the guardian ad litem or special advocate.
    4. In appropriate cases, procedures shall be used to shield children from visual contact with alleged perpetrator.
  2. The Supreme Court is encouraged to issue rules for the conduct of criminal and civil trials involving child abuse in which a child victim or child witness may testify at the trial.

History. Enact. Acts 1992, ch. 351, § 9, effective July 14, 1992.

NOTES TO DECISIONS

1.Generally.

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).

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).

Research References and Practice Aids

Kentucky Bench & Bar.

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.

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.

26A.150. Collection and forwarding of crime victim compensation fee. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 606, § 44, effective July 15, 1998) was repealed by Acts 2002, ch. 183, § 41, effective August 1, 2002.

Construction of Court Facilities

26A.160. Design, financing, and construction of court facilities — Rules of procedure and guidelines — Oversight — Financing requirements — Project standards — Application.

  1. The Chief Justice shall establish rules of procedure or guidelines on matters relating to the design, financing, and construction of court facilities. The rules or guidelines shall encompass:
    1. The duties and responsibilities of the Administrative Office of the Courts under this section;
    2. Criteria for evaluating the feasibility or practicability of various contracting or construction methods;
    3. A project management system for managing, monitoring, and reporting on projects through all phases from funding to completion, including change-order procedures;
    4. Assistance to counties in evaluating proposals for architectural, construction, or other professional services;
    5. Methods for financing energy savings projects, Americans with Disabilities Act projects, and other improvement projects;
    6. Kentucky standards for court facilities, including detailed requirements for space, construction, interior and exterior finishes, structural and mechanical systems, fixed and moveable furniture and equipment, and maximum unit cost for court facilities throughout the Commonwealth; and
    7. The maintenance and operation of court facilities after construction.
  2. The Administrative Office of the Courts shall oversee the design, financing, and construction of court facilities. The Administrative Office of the Courts shall:
    1. Assess the need for court facilities construction or renovation throughout the Commonwealth. The assessment shall consider the age, space adequacy, projected needs, structural soundness, mechanical and electrical systems, security needs, and interior and exterior quality of existing court facilities;
    2. Develop a project program for the construction or renovation of court facilities that the Administrative Office of the Courts determines to be most in need of construction or renovation, based on the needs assessment required under paragraph (a) of this subsection. The project program shall detail a complete and specifically defined court facilities project that conforms to the Kentucky standards for court facilities established under paragraph (f) of subsection (1) of this section, and shall include itemized space requirements, space relationships, design goals, scope limits, site considerations, cost estimates, and a proposed project budget;
    3. Establish the financial condition of any county that contains a court facility for which a project program under paragraph (b) of this subsection has been developed to determine the county’s ability to participate in the proposed project. The Administrative Office of the Courts may discharge this responsibility by obtaining certification of the county’s financial condition from the Department for Local Government under KRS 147A.021(5);
    4. Develop a prioritized list, with cost estimates, based on land availability and the considerations required by this section, of proposed court facilities projects, and submit the list to the Chief Justice for approval and to the Court Facilities Standards Committee for informational purposes only. Upon approval by the Chief Justice, the Administrative Office of the Courts shall submit the prioritized list to the Capital Planning Advisory Board, by April 15 of each odd-numbered year, in accordance with KRS 7A.120 ; and
    5. Develop and maintain uniform contracts to be used by local units of government when procuring architectural, construction, financial, or other services relating to court facilities projects authorized by the General Assembly.
  3. Before the Administrative Office of the Courts submits a budget request for court projects under KRS 48.050 , each local unit of government that is expected to participate in financing a requested court project shall enter into a written memorandum of agreement with the Administrative Office of the Courts. Each county with a court project authorized by the 2000 General Assembly shall enter into a written memorandum of agreement with the Administrative Office of the Courts. The agreement shall be developed by the Administrative Office of the Courts, shall specify the rights, duties, and obligations of the local unit of government and the Administrative Office of the Courts relating to the project, and shall be contingent upon the project’s authorization by the General Assembly.
  4. No contract and no modification to any contract relating to the design, financing, or construction of court facilities projects authorized by the General Assembly shall be executed unless first reviewed and approved by the Administrative Office of the Courts.
  5. All court facilities projects, beginning with those authorized by the 2000 General Assembly, shall comply with the Kentucky standards for court facilities established under paragraph (f) of subsection (1) of this section. No other standards shall be used.
  6. This section shall not affect or apply to any contract executed prior to July 14, 2000.
  7. All local units of government or any other entity providing space to the Court of Justice under KRS 26A.100 shall, consistent with the law, comply with the rules of procedure and guidelines established by the Chief Justice and administered by the Administrative Office of the Courts under this section.

History. Enact. Acts 2000, ch. 496, § 2, effective July 14, 2000; 2007, ch. 47, § 11, effective June 26, 2007; 2010, ch. 117, § 18, effective July 15, 2010.

26A.162. Determination of use allowance — Presumption of twenty year bond issue — Standards for longer term of issue — Legislative oversight.

  1. The use allowance in the judicial branch budget recommendation submitted under KRS 48.100 shall be determined as if bonds will be issued for a term of twenty (20) years at the prevailing market rate, computed from the estimated date that the Court of Justice will occupy the facility. If the market rate for the bonds has increased when the bonds are to be sold, the director of the Administrative Office of the Courts may approve an extension in the bond term, up to a total of twenty-five (25) years, but only as necessary to keep the annual use allowance within the budgeted amount. All bonds issued by any local unit of government for court facilities projects shall be limited to the term approved by the Administrative Office of the Courts.
  2. Before approving any bond issue for a term exceeding twenty-five (25) years, the director of the Administrative Office of the Courts shall submit a proposal for the extended term to the Interim Joint Committee on Appropriations and Revenue and the Capital Projects and Bond Oversight Committee. The proposal shall include a statement of the necessity for the extended bond term and the impact of the extended term on the project’s budgeted scope and authorized annual use allowance.
  3. Within thirty (30) days after receiving a proposal to extend a bond term beyond twenty-five (25) years, the Interim Joint Committee on Appropriations and Revenue and the Capital Projects and Bond Oversight Committee shall either approve or disapprove the proposal and shall then promptly notify the director of the Administrative Office of the Courts. If either committee disapproves the proposal, the director of the Administrative Office of the Courts shall take one (1) of the following actions and shall notify the committee of its decision in writing within thirty (30) days:
    1. Disapprove and take no further action on the proposal;
    2. Revise the proposal to comply with the committee’s objections; or
    3. Determine to approve and proceed with the proposal over the committee’s objection.

History. Enact. Acts 2000, ch. 496, § 3, effective July 14, 2000.

26A.164. Court facility use allowance contingency fund — Purpose — Conditional use — Legislative oversight.

  1. There is created a court facility use allowance contingency fund. The fund shall consist of money appropriated to it in the judicial branch budget by the General Assembly. Money in the fund shall not lapse but shall be carried forward to the next fiscal year or biennium.
  2. The Court of Justice may agree to increase the budgeted scope of a court project or project pool authorized in a judicial branch budget bill enacted by the General Assembly, and may use the use allowance contingency fund to cover any resulting increase in the budgeted annual use allowance, if and only if:
    1. The appropriate unit of government first submits a proposal for the increase to the Court Facilities Standards Committee, and the Court Facilities Standards Committee approves the increase;
    2. The annual use allowance for the project or project pool, adjusted for the proposed increase in scope, would not exceed the annual use allowance specified for that project or project pool in the multiyear use allowance schedule set out in the judicial branch budget bill by more than fifteen percent (15%); and
    3. The requirements of KRS 26A.166 have been met.

History. Enact. Acts 2000, ch. 496, § 4, effective July 14, 2000; 2011, ch. 73, § 2, effective June 8, 2011.

26A.166. Increase in budgeted scope of court facility project — Conditions for approval — Legislative oversight.

  1. Before the Court of Justice gives final approval to an increase in the budgeted scope of an authorized project or project pool listed in a judicial branch budget bill which would result in an increased use allowance, the director of the Administrative Office of the Courts shall submit a proposal for the increase to the Capital Projects and Bond Oversight Committee at least fourteen (14) days prior to the committee meeting. The proposal shall include:
    1. The multiyear use allowance specified in the judicial branch budget bill;
    2. The proposed increase in the use allowance;
    3. The reasons and necessity for the proposed increase;
    4. A statement as to whether or how the proposed use of funds conforms with the requirements of the law; and
    5. Any other information that the committee requests.
  2. Within thirty (30) days after receiving a proposal to increase the use allowance, the Capital Projects and Bond Oversight Committee shall either approve or disapprove the proposal and shall then promptly notify the director of the Administrative office of the Courts of its decision.
  3. If the Capital Projects and Bond Oversight Committee disapproves the proposal, the director of the Administrative Office of the Courts shall take one (1) of the following actions and shall notify the committee of its decision in writing within thirty (30) days of receiving the committee’s notice of disapproval:
    1. Revise the proposal to comply with the committee’s objections;
    2. Cancel and take no further action on the proposal; or
    3. Determine to implement the proposal over the committee’s objection.
  4. The Administrative Office of the Courts shall report to the Capital Projects and Bond Oversight Committee within thirty (30) days of any action taken by the Court of Justice to approve a scope increase of a project within a pool which would increase the use allowance for that project.
  5. The Capital Projects and Bond Oversight Committee shall maintain records of proposals, findings, decisions, and actions taken under this section. When appropriate, the committee shall provide this information to other legislative committees or to the General Assembly.

History. Enact. Acts 2000, ch. 496, § 5, effective July 14, 2000; 2011, ch. 73, § 3, effective June 8, 2011.

26A.168. Reports on status of court facilities projects and contingency fund.

  1. The Administrative Office of the Courts shall provide to the Capital Projects and Bond Oversight Committee, at the committee’s January, April, July, and October regular meetings, a status report of all incomplete court facilities projects. The Capital Projects and Bond Oversight Committee shall prescribe data elements for the quarterly status reports. For each project, the status report shall include:
    1. The project title;
    2. The county in which the project is located;
    3. The scope and use allowance authorized for the project in the judicial branch budget, and any increases to the scope or use allowance under KRS 26A.164 ;
    4. The current status of the project;
    5. Estimated completion date of the project;
    6. An explanation of any delay or major change in the project, including deletion or modification of project components; and
    7. Any other information that the committee requests.
  2. On August 1 of each year, the Administrative Office of the Courts shall prepare a financial report on the court facility use allowance contingency fund for the fiscal year ending on June 30 of that year. The report shall include, with explanations, allotments, expenditures, encumbrances, and the available balance.

History. Enact. Acts 2000, ch. 496, § 6, effective July 14, 2000; 2002, ch. 328, § 2, effective July 15, 2002; 2011, ch. 73, § 4, effective June 8, 2011.

Records

26A.200. Records to be property of Court of Justice — Supreme Court control.

  1. All records, as defined in KRS 171.410(1), which are made by or generated for or received by any agency of the Court of Justice, or by any other court or agency or officer responsible to such court created under the present Constitution, or a former Constitution, whether pursuant to statute, regulation, court rule, or local ordinance shall be the property of the Court of Justice and are subject to the control of the Supreme Court.
  2. The Supreme Court shall determine which records were generated, made, or received by or for any court.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 9.

NOTES TO DECISIONS

1.Due Process.

Due process does not require an appellate court to lay out for inspection by the appellant, even in a capital case, all of the information in its hands from which it may seek perspective and guidance in reviewing the propriety of his sentence. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

2.Statutory Regulation.

The custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

3.Records Pertaining to Review of Death Sentences.

The materials compiled for purposes of reviewing death sentences will be open to the public as soon as the Supreme Court has the opportunity to examine and consider them, and until then they are in the same category as any other source of knowledge or information, apart from the record of proceedings relating to an individual appellant, from which the members of the court may properly seek assistance or inspiration in the formulation of their judgments. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

Cited:

York v. Commonwealth, 815 S.W.2d 415, 1991 Ky. App. LEXIS 109 (Ky. Ct. App. 1991).

Opinions of Attorney General.

The chief justice has the power to enact regulations which preclude the inspection of the court records by a public agency as well as by the public generally. OAG 78-262 .

The old police court records of Kentucky, like all court records, are subject to the control of the Supreme Court of Kentucky. OAG 80-181 .

Court records are given a special status and placed under the exclusive jurisdiction of the Court of Justice pursuant to this section and KRS 26A.220 ; these statutes apply to all records of agencies of the court, and the Board of Bar Examiners is an agency of the court, as it is created and supervised by the Supreme Court. If a court or an agency of the court denies access to a record, the requesting party should take his appeal to the Chief Justice. Thus, denial of a request to inspect documents pertaining to the Kentucky bar examination under KRS 61.878 was proper. OAG 85-9 .

Copies of the proceedings in certain indictments that have not been transcribed and made part of the official record on appeal, copies of all motions in certain cases that have not been transcribed and made part of the official record on appeal, copies of the “in chambers” proceedings in said cases that were recorded but not made part of the official record on appeal, and copies of any and all proceedings in said cases that were recorded but not transcribed and made part of the official record on appeal are court records and, therefore, are not subject to the terms and provisions of the Open Records Act. OAG 85-105 .

The indictment, motions, arraignment, hearings, trial transcript, evidence presented in a proceeding, and presentence investigation were court records and, therefore, not subject to the terms and provisions of the Open Records Act. OAG 87-53 .

Court records are outside the purview of Open Records provisions. OAG 90-4 .

Litigants frequently document in writing the terms of settlements, and they are seldom “generated for” or “received by” the trial court, and settlement records of this nature are not court records and are therefore within the scope of the Open Records Act. OAG 91-20 .

The custody and control of records maintained by the Judicial Retirement and Removal Commission, including those containing the names of the members of the commission who heard requestor’s complaints, is vested in the Supreme Court. Accordingly, if a requestor is aggrieved by the denial of a record generated by the court, or an agency of the court, he must take his appeal to the Chief Justice. OAG 91-45 .

The Judicial Retirement and Removal Commission, its members and employees are part and parcel of the court, and its records are inseparable from the judicial function. OAG 91-45 .

The Kentucky Bar Association is an agency of the court created and supervised by it and court records are given a special status under this section and KRS 26A.220 , and are exclusively governed by the Court of Justice. OAG 91-47 .

The Open Records Act does not apply generally to records generated by the Judicial Retirement and Removal Commission inasmuch as the commission is an agency of the Court of Justice, created under authority of the Kentucky Constitution and Supreme Court Rule; records of the court and agencies of the court enjoy a special status and are placed under the exclusive jurisdiction of the Court of Justice pursuant to this section and KRS 26A.220 . OAG 91-45 .

Court records are exempt from the mandatory disclosure provisions of the Open Records Act and the reasonable fee provision of KRS 61.874(2). OAG 91-193 .

The record requested, a trial transcript, is clearly a court record, and is therefore not subject to the reasonable fee provision found at KRS 61.874(2). OAG 91-193 .

The courts and judicial agencies are not bound by the provisions of the Open Records Act except to the extent that those provisions are not in conflict with the court’s rules and regulations governing access to its own records, and are accepted as a matter of comity. All records which are made by or generated for or received by any other court, agency, or officer responsible to the Court, are the property of the Court and are subject to the control of the Supreme Court. Court records are therefore given a special status, and placed under the exclusive jurisdiction of the court. OAG 98-ORD-6.

The Administrative Office of the Courts is not bound by the provisions of the Open Records Act. The AOC is part and parcel of the judicial department of the state and inseparable from the office of the Chief Justice itself; records generated by and for the AOC are indisputably records of the Court. It is for the Court to determine which policies evinced by the Open Records Law present interferences with the orderly conduct of its business, and which policies it will accept as a matter of comity. OAG 04-ORD-37.

Court Appointed Special Advocate (CASA) is not a “public agency” within the meaning of KRS 61.870(1), and is therefore not bound by the provisions of the Open Records Act. In addition, CASA officials and volunteers must keep confidential all information contained in records of the type requested except in conferring with or reports to the court pursuant to KRS 620.505(8), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l). OAG 05-ORD-004.

The Kentucky Correctional Psychiatric Center properly denied the request of an individual for a copy of his court ordered evaluation conducted for the purpose of determining his competency to stand trial because, under KRS 26A.200 , the requested report is a “court record” under the exclusive jurisdiction of the court. OAG 05-ORD-56.

26A.210. Utilization of technical assistance and services of Department for Libraries and Archives — Records no longer needed may be offered to department.

  1. The Supreme Court or the Administrative Office of the Courts may, upon appropriate agreement, utilize the technical assistance and services of the Department for Libraries and Archives.
  2. When there is no further need for a record of the Court of Justice, the Supreme Court may offer the record to the Department for Libraries and Archives.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 10.

26A.220. Supreme Court supervision and control of court records.

All public officers, public agencies, or other persons having custody, control, or possession of court records by statute or otherwise shall be subject to the direction of the Supreme Court with regard to such records and no such officer, agency, or person shall fail to comply with any rule, regulation, standard, procedure, or order issued by the Chief Justice or his designee.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 11.

Opinions of Attorney General.

Under the order of the Supreme Court of Kentucky of May 18, 1979, it is implicit that old police court records are considered available to the Circuit Court and Circuit Court clerk of the particular county; therefore, the Circuit Court clerk is considered the custodian of such records for the court and as such custodian, the circuit clerk, or lawful deputy, may authenticate a copy of the order found in the police court order book for introduction at a subsequent trial, as provided by RCr 9.44 and CR 44.01. OAG 80-181 .

Court records are given a special status and placed under the exclusive jurisdiction of the Court of Justice pursuant to KRS 26A.220 and this section; these statutes apply to all records of agencies of the court, and the Board of Bar Examiners is an agency of the court, as it is created and supervised by the Supreme Court. If a court or an agency of the court denies access to a record, the requesting party should take his appeal to the Chief Justice. Thus, denial of a request to inspect documents pertaining to the Kentucky bar examination under KRS 61.878 was proper. OAG 85-9 .

Court records are outside the purview of Open Records provisions. OAG 90-4 .

The custody and control of records maintained by the Judicial Retirement and Removal Commission, including those containing the names of the members of the commission who heard requestor’s complaints, is vested in the Supreme Court. Accordingly, if a requestor is aggrieved by the denial of a record generated by the court, or an agency of the court, he must take his appeal to the Chief Justice. OAG 91-45 .

The Judicial Retirement and Removal Commission, its members and employees are part and parcel of the court, and its records are inseparable from the judicial function. OAG 91-45 .

The Open Records Act does not apply generally to records generated by the Judicial Retirement and Removal Commission inasmuch as the commission is an agency of the Court of Justice, created under authority of the Kentucky Constitution and Supreme Court Rule; records of the court and agencies of the court enjoy a special status and are placed under the exclusive jurisdiction of the Court of Justice pursuant to KRS 26A.200 and this section. OAG 91-45 .

The Kentucky Bar Association is an agency of the court created and supervised by it and court records are given a special status under KRS 26A.200 and this section, and are exclusively governed by the Court of Justice. OAG 91-47 .

The courts and judicial agencies are not bound by the provisions of the Open Records Act except to the extent that those provisions are not in conflict with the court’s rules and regulations governing access to its own records, and are accepted as a matter of comity. All records which are made by or generated for or received by any other court, agency, or officer responsible to the Court, are the property of the Court and are subject to the control of the Supreme Court. Court records are therefore given a special status, and placed under the exclusive jurisdiction of the court. OAG 98-ORD-6.

The Administrative Office of the Courts is not bound by the provisions of the Open Records Act. The AOC is part and parcel of the judicial department of the state and inseparable from the office of the Chief Justice itself; records generated by and for the AOC are indisputably records of the Court. It is for the Court to determine which policies evinced by the Open Records Law present interferences with the orderly conduct of its business, and which policies it will accept as a matter of comity. OAG 04-ORD-37.

Court Appointed Special Advocate (CASA) is not a “public agency” within the meaning of KRS 61.870(1), and is therefore not bound by the provisions of the Open Records Act. In addition, CASA officials and volunteers must keep confidential all information contained in records of the type requested except in conferring with or reports to the court pursuant to KRS 620.505(8), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l). OAG 05-ORD-004.

26A.250. Disqualification of prosecuting attorney — Appointment of a special prosecutor. [Repealed and reenacted.]

Compiler’s Notes.

This section (Acts 1976, ch. 59, § 1) was repealed and reenacted as KRS 15.733 by Acts 1980, ch. 188, § 10, effective July 15, 1980.

26A.260. Web site to provide public access to expenditure records of judicial branch — Monthly and weekly updates — AOC is sole custodian of information and records — Branches to share software and applications.

  1. By January 1, 2012, the Administrative Office of the Courts, under the direction of the Chief Justice, shall provide public access to records relating to expenditures of the judicial branch of state government through display of the records on a Web site. The Web site shall provide:
    1. Financial information of expenditures not exempt under the provisions of state or federal law, including:
      1. The payee name;
      2. The category or type of the expenditure;
      3. A description of the reason for the expenditure, if available;
      4. The expenditure amount; and
      5. A link to the financial document, if the document is electronically available;
    2. A searchable format;
    3. Access to the current enacted Judicial Branch Budget; and
    4. A link to the public access Web site displays of the executive and legislative branches of state government, and of the public institutions of higher education.
  2. Information on the Web site shall be updated at least on a monthly basis. However, information on the Web site which is part of, or contained in, an electronic accounting system utilized by all branches of state government, such as the Enhanced Management Administrative Reporting System (EMARS), shall be updated on a weekly basis.
  3. The Administrative Office of the Courts shall maintain exclusive control and be considered the sole custodian of all information and records generated by and through activity of the judicial branch of government, notwithstanding the situs of the information and records in another branch of government, and disclosure thereof shall only be by the Administrative Office of the Courts in accordance with applicable law.
  4. In order to reduce Web site development costs and enhance public access and use of records viewed through Web sites as provided by this section and KRS 7.505 and 42.032 , each branch of state government shall freely share with the other branches of state government the software, software developments, and all applications, data, and information within its control used for Web site design, appearance, content, and operation in compliance with, or in furtherance of, the purposes contemplated by this section and KRS 7.505 and 42.032 .

History. Enact. Acts 2011, ch. 105, § 2, effective June 8, 2011.

Judgments

26A.300. Collection of judgment — Damages.

  1. When collection of a judgment for the payment of money has been stayed as provided in the Rules of Civil Procedure, there shall be no damages assessed on the first appeal as a matter of right contemplated by Section 115 of the Constitution of Kentucky.
  2. When collection of a judgment for the payment of money has been stayed as provided in the Rules of Civil Procedure pending any other appeal, damages of ten percent (10%) on the amount stayed shall be imposed against the appellant in the event the judgment is affirmed or the appeal is dismissed after having been docketed in an appellate court.
  3. Similar damages of ten percent (10%) shall be imposed when a petition for writ of certiorari, petition for rehearing, or other petition which stays collection of a judgment for the payment of money is denied by an appellate court under circumstances not constituting a first appeal under subsection (1) of this section.
  4. No additional penalty shall be imposed upon a party as a consequence of a review subsequent to a petition or a second appeal.
  5. Damages imposed under subsection (2) or (3) of this section shall not be payable and shall be void if the decision of the trial court awarding the payment of money is ultimately reversed.

History. Enact. Acts 1976, ch. 59, § 1.

Compiler’s Notes.

This section was formerly compiled as KRS 26A.010 .

NOTES TO DECISIONS

1.Constitutionality.

KRS 26A.300 violates equal protection under U.S. Const. amend. XIV and Ky. Const. §§ 1, 2, 3 in that KRS 26A.300 ’s penalty is assessed when a motion for discretionary review is denied by this Court and, when applicable, the assessment of the penalty is automatic and mandatory and applies only to unsuccessful appellants in second appeals from superseded money judgments. A penalty is not assessed against other unsuccessful appellants in second appeals, e.g., unsuccessful plaintiff-appellants, unsuccessful defendant-appellants who do not supersede a money judgment awarded against them, and unsuccessful appellants from non-money judgments and, therefore, the statute treats unsuccessful appellants in second appeals differently; furthermore, KRS 26A.300 is not rationally related to its goal of deterring frivolous appeals, especially where alternate, non-discriminatory deterrents in the court’s rules are more effective. Elk Horn Coal Corp. v. Cheyenne Res., Inc., 163 S.W.3d 408, 2005 Ky. LEXIS 166 ( Ky. 2005 ).

KRS 26A.300 violates the separation of powers provisions of Ky. Const. §§ 27, 28 in that it deters all discretionary review motions, so it limits the court’s exclusive power under Ky. Const. §§ 110(2)(b), 116, to exercise appellate jurisdiction under its own rules. Elk Horn Coal Corp. v. Cheyenne Res., Inc., 163 S.W.3d 408, 2005 Ky. LEXIS 166 ( Ky. 2005 ).

2.Docketing of Appeal.

Where supersedeas was issued September 12, 1958 after the execution of supersedeas bond, time for filing appeal expired December 30, 1958, record on appeal was filed January 2, 1959 and all the appropriate steps were taken in compliance with RCA1.070 (now see Supreme Court Rules), it was a proper docket for appeal and appellee was entitled to collect ten percent damages under former section providing for damages upon affirmance or dismissal of appeal for the delay occasioned in the collection of his debt. (Decided under prior law)Solter v. Sandy Valley Grocery Co., 352 S.W.2d 816, 1961 Ky. LEXIS 214 ( Ky. 1961 ).

Contention of insurance company that penalty is payable only after appeal is docketed and as defendant never caused any part of the record to be filed or docketed penalty cannot be awarded was without merit for the cause was docketed within the meaning of former section when plaintiff caused the judgment to be filed and with it a motion to dismiss and award a penalty under former section. (Decided under prior law)Baker v. Fidelity & Deposit Co., 355 S.W.2d 150, 1962 Ky. LEXIS 58 ( Ky. 1962 ).

3.Petition for Rehearing.

Section 115 of the Constitution takes precedence over this section and damages under this section do not accrue when a petition for rehearing has been filed in the Court of Appeals. Ash v. Security Nat'l Ins. Co., 574 S.W.2d 346, 1978 Ky. App. LEXIS 625 (Ky. Ct. App. 1978).

Damages under this section are properly awarded when a motion for discretionary review is denied. Fred Clements Heating & Air Conditioning Co. v. Janes, 576 S.W.2d 280, 1979 Ky. App. LEXIS 370 (Ky. Ct. App. 1979).

In an action which grew out of a collision between a train and an automobile, where estate of the driver of the automobile recovered a judgment against the railway company for damages together with interest, and railway appealed to the court of appeals where the judgment of the trial court was reversed, but Supreme Court, on motion of administratrix granted discretionary review, and reversed the court of appeals and affirmed the Circuit Court, following denial of railroad’s petition for rehearing, the railway company was liable for penalty of 10 percent on the amount of the judgment against it, as motion for discretionary review filed by administratrix presented circumstances not constituting a first appeal. Wells v. Southern R. Co., 633 S.W.2d 406, 1982 Ky. LEXIS 252 ( Ky. 1982 ).

4.Prior Appeals.

The Court of Appeals had no discretion as to awarding ten percent damages under former law that provided for damages upon affirmance or dismissal of appeal, and where a superseded judgment had been affirmed, ten percent damages must be awarded although ten percent damages had been awarded and paid on a prior appeal from the judgment, which appeal had been dismissed. (Decided under prior law)United States Fidelity & Guaranty Co. v. Citizens' Nat'l Bank, 147 Ky. 810 , 145 S.W. 750, 1912 Ky. LEXIS 342 ( Ky. 1912 ). See Edge v. Lexington, 263 Ky. 801 , 93 S.W.2d 854, 1936 Ky. LEXIS 248 ( Ky. 1936 ).

The damages allowed are awarded upon or after the filing of the mandate of the Court of Appeals in the Circuit Court and may be awarded on repeated appeals from the same judgment. (Decided under prior law)Wermeling v. Wermeling, 224 Ky. 107 , 5 S.W.2d 893, 1928 Ky. LEXIS 543 ( Ky. 1928 ).

Former statute that provided for damages upon affirmance or dismissal of appeal was mandatory, and when an appeal was dismissed or a judgment affirmed, where a judgment for the payment of money had been superseded, damages were awarded as a matter of right, and this was true although an appeal was dismissed and later another appeal from the same judgment was prosecuted and a second supersedeas was issued. If the judgment was affirmed, the appellee was entitled to ten percent damages in each instance. (Decided under prior law)Preece v. Burns' Adm'r, 261 Ky. 202 , 87 S.W.2d 375, 1935 Ky. LEXIS 624 ( Ky. 1935 ).

5.Failure of Jurisdiction.

Where the Circuit Court which had purported to grant an appeal to the Court of Appeals was without jurisdiction to do so, and since there had been no appeal, the supersedeas bond was void, and thus, the appellee was not entitled to recover ten percent damages in the Court of Appeals. (Decided under prior law)Childers v. Ratliff, 164 Ky. 123 , 175 S.W. 25, 1915 Ky. LEXIS 344 ( Ky. 1915 ).

Where attempted appeal from interlocutory order was dismissed for lack of jurisdiction, the supersedeas bond given on such appeal was void and granting of damages thereon as directed by erroneous recitation in mandate as prepared by clerk of Court of Appeals was improper. (Decided under prior law)Harris v. Ballantine, 421 S.W.2d 847, 1967 Ky. LEXIS 83 ( Ky. 1967 ).

6.Judgment.

This section does not require that the judgment be personal against the appellant; the only requirement is that the judgment be for the payment of money, as opposed to a judgment granting equitable relief. Coomer v. Gray, 750 S.W.2d 424, 1988 Ky. LEXIS 23 ( Ky. 1988 ).

Where the allowance of damages was sought after the judgment and therefore was not superseded, the ten percent penalty did not attach to the allowance of damages for the detention obtained after the affirmance. (Decided under prior law)Sotak v. Sotak, 438 S.W.2d 490, 1969 Ky. LEXIS 402 ( Ky. 1969 ).

7.— Money.

A judgment for the return of personalty or, if not to be had, its specified value, is a judgment for the specified value if the property cannot be had, and when such a judgment is superseded and affirmed, it becomes the duty of the Circuit Court to enter a judgment for ten percent damages on the specified value, when the processes of the law failed to secure the return of the property. (Decided under prior law)Rennebaum v. Atkinson, 105 Ky. 396 , 49 S.W. 1, 20 Ky. L. Rptr. 1346 , 1899 Ky. LEXIS 204 ( Ky. 1899 ).

A judgment affirming award of workmen’s (now workers’) compensation to claimant was a money judgment and when superseded on appeal, appellee was entitled to ten percent damages under former law providing for damages upon affirmance or dismissal of appeal. (Decided under prior law)Rice v. Conley, 419 S.W.2d 769, 1967 Ky. LEXIS 195 ( Ky. 1967 ).

8.— Supersedeas Bond.

Pursuant to KRS 26A.300(1), when a father filed a supersedeas bond to stay collection of a judgment for back child support, no damages could be assessed against him because it was his first appeal as a matter of right under Ky. Const. § 115. Thus, the mother’s motion to compel him to pay damages caused by the stay asked for relief that was statutorily forbidden. Hines v. Carpenter, 2009 Ky. App. LEXIS 17 (Ky. Ct. App. Feb. 6, 2009).

The mere execution of a supersedeas bond is not sufficient to stay the execution of a judgment, as the issuance and service of a supersedeas is necessary for that purpose, and after a judgment has been affirmed the Court of Appeals will not, on appellee’s motion, order a supersedeas issued, merely that it may have a pretext for awarding damages. (Decided under prior law)Phoenix Ins. Co. v. McKernan, 104 Ky. 224 , 46 S.W. 698, 20 Ky. L. Rptr. 337 , 1898 Ky. LEXIS 150 ( Ky. 1898 ).

A motion for damages on affirmance will be denied where the supersedeas bond is not a part of the record at the time the judgment of the trial court is affirmed. (Decided under prior law)M. V. Monarch Co. v. Farmers' & Traders' Bank, 106 Ky. 206 , 50 S.W. 33, 20 Ky. L. Rptr. 1788 , 1899 Ky. LEXIS 23 ( Ky. 1899 ).

9.Costs.

Former law that provided for damages upon affirmance or dismissal of appeal did not apply where the only pecuniary relief afforded by the judgment appealed from was an award of the costs of the action. (Decided under prior law)Oberdorfer v. White, 118 Ky. 291 , 80 S.W. 1099, 26 Ky. L. Rptr. 182 , 1904 Ky. LEXIS 36 ( Ky. 1904 ).

The Court of Appeals has consistently held that damages will not be awarded on costs adjudged in the lower court and the fee allowed the wife’s attorney in a divorce action is part of the costs. (Decided under prior law)Combs v. Combs, 304 Ky. 271 , 200 S.W.2d 481, 1947 Ky. LEXIS 626 ( Ky. 1947 ).

10.Interest.

Where on an original appeal to the Court of Appeals by defendant from a judgment for payment of money the judgment was affirmed by the Court of Appeals but no judgment was rendered by that court fixing the amount of the damages, and an appeal was subsequently taken to the Supreme Court and there the judgment was affirmed, no interest was allowable on the ten percent damages, but interest was allowed on the judgment from the time of its rendition. (Decided under prior law)Louisville & N. R. Co. v. Melton, 146 Ky. 242 , 142 S.W. 382, 1912 Ky. LEXIS 44 ( Ky. 1912 ).

In the absence of statutory requirements penalties do not bear interest. (Decided under prior law)Phillips v. Green, 288 Ky. 202 , 155 S.W.2d 841, 1941 Ky. LEXIS 73 ( Ky. 1941 ).

11.Damages.

Where railroad company obtained a supersedeas, and the law of the state makes ten percent the cost of it to all persons if the judgment is affirmed, there was no burden upon the state to provide for a suspension of the judgment, and nothing to prevent it making it costly in cases where ultimately the judgment is upheld. (Decided under prior law) Louisville & N. R. Co. v. Stewart, 241 U.S. 261, 36 S. Ct. 586, 60 L. Ed. 989, 1916 U.S. LEXIS 1752 (U.S. 1916).

Where the supersedeas had been issued by the clerk of the Circuit Court, after the filing of the appeal in the Court of Appeals, and after the opinion of that court had been handed down, but, before the issuance of the mandate, and before the time of its issuance, the appellee was entitled to have damages awarded upon the amount of the judgment superseded, after its affirmance. (Decided under prior law)Kelly v. Kelly, 183 Ky. 172 , 209 S.W. 335, 1919 Ky. LEXIS 486 (Ky.), modified, 183 Ky. 576 , 209 S.W. 339, 1919 Ky. LEXIS 487 ( Ky. 1919 ).

What is denominated “damages” on a supersedeas bond is not strictly so, for it is at the same time a penalty or tax imposed by legislative enactment upon the unsuccessful litigant for having delayed the litigation, and for having kept the successful litigant from sooner collecting his debt — a panacea as it were, for the law’s delay. (Decided under prior law)Phillips v. Green, 288 Ky. 202 , 155 S.W.2d 841, 1941 Ky. LEXIS 73 ( Ky. 1941 ); Solter v. Sandy Valley Grocery Co., 352 S.W.2d 816, 1961 Ky. LEXIS 214 ( Ky. 1961 ).

The damages provided by former law that provided for damages upon affirmance or dismissal of appeal were a flat ten percent and not ten percent per annum. (Decided under prior law)Moss v. Smith, 361 S.W.2d 511, 1962 Ky. LEXIS 244 ( Ky. 1962 ).

Fact that the Commonwealth is not required to execute a bond did not exempt it from liability for payment of damages. (Decided under prior law)Commonwealth, Dep't of Highways v. Whipple, 392 S.W.2d 81, 1965 Ky. LEXIS 274 ( Ky. 1965 ).

12.— Failure to Award.

The failure of the court to make an award of ten percent damages on the affirmance of the judgment for the collection of money which judgment had been superseded was a clerical error which could be corrected by the Court of Appeals after its judgment had been affirmed by the Supreme Court. (Decided under prior law)Illinois C. R. Co. v. Commonwealth, 143 Ky. 217 , 136 S.W. 222, 1911 Ky. LEXIS 381 ( Ky. 1911 ).

13.— Independent Action to Recover.

Upon the dismissal of the appellant’s appeal from a judgment for damages, because the transcript was not filed in time, and the appellee thereupon filed in the Circuit Court the mandate and entered his motion for damages against the appellant upon the supersedeas, the motion was properly sustained as it was not necessary for the appellee to resort to an independent action to recover such damages. (Decided under prior law)Tennessee C. R. Co. v. Reeves' Adm'r, 147 Ky. 305 , 143 S.W. 995, 1912 Ky. LEXIS 197 ( Ky. 1912 ).

14.— Not Applicable.

A judgment decreeing enforcement of a tax against specific property is not a personal judgment against the taxpayer and the ten percent damages allowed by former section do not attach. (Decided under prior law)Bell's Trustee v. Lexington, 124 Ky. 463 , 99 S.W. 344, 30 Ky. L. Rptr. 609 , 1907 Ky. LEXIS 204 ( Ky. 1907 ).

15.— Payment of Money.

Where a supersedeas bond was executed to supersede a judgment adjudging that the plaintiffs were the owners of the undivided three-fifths of a certain lot of land and allowing plaintiffs rent at the rate of $45.00 per year, and ordering a sale of the property, damages could not be awarded, since former section applied only to cases where the judgment is one for payment of money, which may be enforced by execution or similar process. (Decided under prior law)Worsham v. Lancaster, 104 Ky. 813 , 48 S.W. 410, 20 Ky. L. Rptr. 969 , 1898 Ky. LEXIS 234 ( Ky. 1898 ).

16.Penalty.

In order to impose the penalty provided in subsection (2) of this section, the judgment in question must be in a definite amount, certain and ascertainable, and the judgment must be collectible by execution without further order of the court; accordingly, where the trial court made no determination in a divorce judgment of the amount, if any, of the net proceeds of the crop sales, livestock sales and dividends payable to the wife as her portion of the marital property, the 10 percent penalty could not be applied. Ford v. Ford, 623 S.W.2d 903, 1981 Ky. LEXIS 294 ( Ky. 1981 ).

The penalty provided for in subsection (3) of this section should be imposed only on the principal dollar amount of the verdict and should not be applied to the interest charged on the verdict. Wells v. Southern R. Co., 633 S.W.2d 406, 1982 Ky. LEXIS 252 ( Ky. 1982 ).

Damages for delay can be awarded when the litigation is over a fund in court; the judgment need not be such as would be enforceable by execution. Coomer v. Gray, 750 S.W.2d 424, 1988 Ky. LEXIS 23 ( Ky. 1988 ).

The ten percent damage for delay provision of this section applied upon the second appeal from a judgment which determined ownership of sums of money held by a master commissioner in an interest bearing account pursuant to an order of the court. Coomer v. Gray, 750 S.W.2d 424, 1988 Ky. LEXIS 23 ( Ky. 1988 ).

Purpose of KRS 26A.300 is not to punish a litigant for any wrong done; rather KRS 26A.300 imposes a penalty upon an unsuccessful litigant for having delayed litigation, and for having kept a successful plaintiff from sooner collecting his judgment. Watts v. Lab. Corp., 139 S.W.3d 534, 2004 Ky. App. LEXIS 123 (Ky. Ct. App. 2004).

KRS 26A.300(3) contemplates that a litigant who seeks discretionary review while a judgment is superseded bears the risk of an unsuccessful outcome; a judgment creditor is entitled to enforcement of the judgment, and any period that judgment is superseded following a matter-of-right appeal delays enforcement of the judgment. Watts v. Lab. Corp., 139 S.W.3d 534, 2004 Ky. App. LEXIS 123 (Ky. Ct. App. 2004).

Penalty imposed by KRS 26A.300 was triggered when a laboratory filed a motion for discretionary review after an appellate court affirmed a judgment against it in a medical negligence action, and the trial court should have imposed the penalty even though the laboratory satisfied the judgment before its motion for discretionary review was denied. Watts v. Lab. Corp., 139 S.W.3d 534, 2004 Ky. App. LEXIS 123 (Ky. Ct. App. 2004).

Contention that trial court was correct in overruling motion for penalty as it had been litigated and determined by Court of Appeals quoting Court of Appeals’ clerk’s correspondence as evidence was without merit as the court speaks through its orders and there was no order on the issue of penalty. (Decided under prior law)Baker v. Fidelity & Deposit Co., 355 S.W.2d 150, 1962 Ky. LEXIS 58 ( Ky. 1962 ).

The special fund, although an agency of the state, is not exempt by reason of sovereign immunity from payment of the ten percent on the amount originally awarded by the Workmen’s (now Workers’) Compensation Board. (Decided under prior law)Wagoner v. Cansler, 542 S.W.2d 291, 1976 Ky. LEXIS 25 ( Ky. 1976 ).

Where plaintiff had obtained joint and several judgment in action against two defendants and one of the defendants had paid the judgment in full, including interest and ten percent penalty, plaintiff could not subsequently collect the ten percent penalty on the appeal bond filed by the other defendant. (Decided under prior law)Milam v. Sears, Roebuck & Co., 554 S.W.2d 877, 1977 Ky. App. LEXIS 774 (Ky. Ct. App. 1977), aff'd, 562 S.W.2d 311, 1978 Ky. LEXIS 324 ( Ky. 1978 ).

The appellee was entitled to recover ten percent damages upon that part of the judgment superseded, upon the dismissal of the appeal due to the appellant’s failure to timely file a transcript in the office of the clerk of the Court of Appeals, where the appeal granted from the Circuit Court was from the judgment as whole, even though the amount superseded was less than $500. (Decided under prior law)Calvert v. Wilder, 180 Ky. 97 , 201 S.W. 449, 1918 Ky. LEXIS 1 ( Ky. 1918 ).

Where the whole of a money judgment, payable in installments, has been superseded, ten percent damages will go not only on the amount due before the execution of the bond, but on the amounts due after the execution of the bond, if the collection of the after due sums could be enforced by execution or similar process. (Decided under prior law)Butler v. Jackson, 187 Ky. 555 , 219 S.W. 1082, 1920 Ky. LEXIS 165 ( Ky. 1920 ).

Where appellant recovered an original judgment of $13,544.35 and this judgment was reversed on appeal except to the extent of $438.58, he was entitled to recover a supersedeas penalty on $438.58 and not on the original judgment. (Decided under prior law)Beckman v. Time Finance Co., 334 S.W.2d 898, 1960 Ky. LEXIS 232 ( Ky. 1960 ).

Where at time of affirmance of workmen’s (now workers’) compensation award only $4,000 was due, ten percent of that amount is the penalty because that was all that was superseded. (Decided under prior law)E. I. Du Pont De Nemours & Co. v. Connick, 420 S.W.2d 129, 1967 Ky. LEXIS 101 ( Ky. 1967 ).

Where judgment for alimony was modified on appeal by a judgment for a lesser amount, an award of damages on supersedeas bond and interest both based on the reduced amount, from the date of the original judgment, was proper. (Decided under prior law)Howard v. Howard, 421 S.W.2d 862, 1967 Ky. LEXIS 91 ( Ky. 1967 ).

The supersedeas penalty attaches to the amount of the judgment affirmed. (Decided under prior law)Sotak v. Sotak, 438 S.W.2d 490, 1969 Ky. LEXIS 402 ( Ky. 1969 ).

Where wife in divorce proceeding was prevented by supersedeas from issuing an execution to recover any part of judgment to which trial court said she was entitled, trial court’s action in allowing supersedeas penalty on the amount it found had been affirmed was proper even though the specific amount the wife was entitled to recover was not specified in appellate opinion. (Decided under prior law)Sharp v. Sharp, 516 S.W.2d 875, 1974 Ky. LEXIS 185 ( Ky. 1974 ).

Research References and Practice Aids

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 13.

Palmore, A Summary of Significant Decisions by the Supreme Court of Kentucky April 1982-April 1983, Vol. 47, No. 3, July 1983, Ky. Bench & Bar 14.

Kentucky Law Journal.

Kentucky Law Survey: Cooper, Civil Procedure, 66 Ky. L.J. 531 (1977-1978).

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Treatises

Petrilli, Kentucky Family Law, Maintenance, § 25.16.

Drug Court Program

26A.400. Drug court program — Administration — No right to treatment conferred — Exemption from division supervision while in program.

  1. As used in this section, unless the context otherwise requires, “drug court program” means any drug court program authorized and administered by the Kentucky Supreme Court.
  2. The Supreme Court of Kentucky shall administer the drug court program to:
    1. Develop standards, establish program eligibility, and provide oversight for operation for drug court programs;
    2. Define, develop, and gather outcome measures for drug court programs;
    3. Collect, report, and disseminate drug court data;
    4. Sponsor and coordinate state drug court training; and
    5. Apply for, administer, and evaluate any grant for drug court purposes.
  3. Nothing contained in this section shall confer a right or an expectation of a right to treatment for an offender within the criminal justice system or the juvenile justice system.
  4. If a defendant has been accepted into the drug court program and is supervised by that program as a condition of probation, the defendant shall not be subject to the supervision of the Division of Probation and Parole during his or her participation in the drug court program.

History. Enact. Acts 2011, ch. 2, § 25, effective June 8, 2011; 2012, ch. 156, § 10, effective July 12, 2012.

CHAPTER 27 Master Commissioners and Receivers [Repealed]

27.010. Master commissioner for circuit court — Appointment — Term — Bond. [Repealed.]

Compiler’s Notes.

This section (392, 394) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.020. Commissioner in courts having two judges — Appointment. [Repealed.]

Compiler’s Notes.

This section (1019b-12) was repealed by Acts 1962, ch. 119, § 6.

27.025. Master commissioner for circuit courts of continuous session in counties having less than 150,000 population. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 119, § 3) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.030. Receiver — When commissioner to act as — Appointment — Oath and bond. [Repealed.]

Compiler’s Notes.

This section (409, 410) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.035. Appointment of receiver for mortgaged property. [Repealed.]

Compiler’s Notes.

This section (C.C. 229: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.040. Commissioner and receiver in Jefferson County. [Repealed.]

Compiler’s Notes.

This section (1020-20, 1020-23: amend. Acts 1966, ch. 255, § 45) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.050. Special commissioner. [Repealed.]

Compiler’s Notes.

This section (399) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.060. Receiver or commissioner may be selected by parties. [Repealed.]

Compiler’s Notes.

This section (400) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.061. Appointment of receiver — Appeal from order appointing or refusing to appoint. [Repealed.]

Compiler’s Notes.

This section (C.C. 298: trans. Acts 1952, ch. 84, § 1; 1976, ch. 62, § 37) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.062. Persons not to be appointed receivers. [Repealed.]

Compiler’s Notes.

This section (C.C. 300: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.063. Oath and bond of receiver. [Repealed.]

Compiler’s Notes.

This section (C.C. 301: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.064. Powers of receiver. [Repealed.]

Compiler’s Notes.

This section (C.C. 302: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.070. Vacancy in vacation — How filled. [Repealed.]

Compiler’s Notes.

This section (397) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.080. Deputies. [Repealed.]

Compiler’s Notes.

This section (405, 1761, 1761-1: amend. Acts 1946, ch. 224; 1950, ch. 196, § 4) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.085. Secretary to master commissioner in certain counties containing city of second class — Transcript of proceedings. [Repealed.]

Compiler’s Notes.

This section (Acts 1946, ch. 77; 1968, ch. 152, § 14; 1976, ch. 62, § 38) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.090. May use proof of, and perform duties of, predecessor. [Repealed.]

Compiler’s Notes.

This section (398) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.100. Powers and duties of commissioner. [Repealed.]

Compiler’s Notes.

This section (394, 395) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.110. Docket, to keep — Entries may be used to prove claim. [Repealed.]

Compiler’s Notes.

This section (404) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.120. Receiver’s office hours — Vacation. [Repealed.]

Compiler’s Notes.

This section (414) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.130. Report of collections. [Repealed.]

Compiler’s Notes.

This section (402) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.140. Depository court may select bank as. [Repealed.]

Compiler’s Notes.

This section (411) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.150. Money received, custody, accounting and disbursement of. [Repealed.]

Compiler’s Notes.

This section (410, 412) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.160. Reports on deposits. [Repealed.]

Compiler’s Notes.

This section (413) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.170. Interest on deposits applied to costs. [Repealed.]

Compiler’s Notes.

This section (415) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

27.180. Loan of money deposited in court. [Repealed.]

Compiler’s Notes.

This section (C.C. 308: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 31A.

CHAPTER 27A Judicial Support Agencies and Personnel

27A.010. Executive head of Court of Justice.

In accordance with Section 110(5)(b) of the Constitution of Kentucky, the Chief Justice of the Commonwealth shall be the executive head of the Court of Justice and shall appoint such administrative assistants as he deems necessary.

History. Enact. Acts 1976, ch. 61, § 1.

27A.015. Administrative office of courts — Compensation — Prohibition. [Repealed.]

Compiler’s Notes.

This section (Acts 1976, ch. 61, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 33, § 2.

27A.020. Chief Justice — Delegation of functions.

The Chief Justice in his sole discretion may delegate the following functions to the administrative director of the courts or to his administrative assistants:

  1. Perform administrative services for the Court of Justice and supervise its clerical and administrative personnel, and its accommodations;
  2. Act as fiscal officer of the Court of Justice and in so doing shall:
    1. Maintain fiscal controls and accounts of funds appropriated for the Court of Justice;
    2. Review and audit expense vouchers of justices, judges, and employees of the Court of Justice. Upon approval, the Chief Justice shall submit the vouchers to the Finance and Administration Cabinet, which shall certify the same to the State Treasurer for payment;
    3. Prepare all requisitions for the payment of state moneys appropriated for the maintenance and operation of the Court of Justice;
    4. Prepare budget estimates of state appropriations necessary for the maintenance and operation of the Court of Justice and make recommendations in respect thereto;
    5. Collect statistical and other data and make report to the Supreme Court relating to the expenditure of public moneys for the maintenance and operation of the Court of Justice and the offices connected therewith;
  3. Ascertain the necessity for assignment of justices and judges as contemplated by Section 110(5) (b) of the Constitution, make reports concerning their performance of duties and certify the compensation payable to them;
  4. Carry on a continuous survey and study of the organization, operation, condition of business, practice and procedure of the Court of Justice;
  5. Collect and compile statistical and other data concerning the operations of the courts, and to this end may require all necessary reports from the courts and clerks thereof of this Commonwealth relating to rules, dockets, and business dispatched or pending in such courts;
  6. Formulate and submit to the Supreme Court recommendations of policies for the improvement of the Court of Justice;
  7. Provide for educational programs for the members of the Court of Justice;
  8. Report to the General Assembly concerning the work of the Court of Justice and make such recommendations for the improvement of administration of justice as deemed necessary and proper;
  9. Supervise, operate, and administer all pretrial release programs and personnel which come within the purview of the Court of Justice, or which are related thereto;
  10. Perform such other functions as may be assigned by the Chief Justice.

History. Enact. Acts 1976, ch. 61, § 3.

Research References and Practice Aids

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 13.

27A.050. Administrative Office of Courts — Appointment of director — Compensation — Prohibition.

The Administrative Office of the Courts is created to serve as the staff for the Chief Justice in executing the policies and programs of the Court of Justice. The director of the Administrative Office of the Courts, employees thereof, and administrative assistants of the Chief Justice shall serve at the pleasure of the Chief Justice. Provided, however, the director shall be appointed or reappointed at least every four (4) years with the advice and consent of the Senate; but if the Senate is not in session when a term expires or a vacancy occurs, the Chief Justice shall make the appointment to take effect at once, subject to the approval of the Senate when convened. The salaries of the director, employees thereof, and administrative assistants of the Chief Justice shall be fixed by order of the Chief Justice and paid monthly or at such other periods as may be consonant with the policy applicable to payment of salaries of state employees out of the State Treasury. While holding their positions the director, employees of the office and administrative assistants shall not practice law in any court of this Commonwealth.

History. Enact. Acts 1976 (Ex. Sess.), ch. 33, § 1.

Compiler’s Notes.

Section 3 of Acts 1976 (Ex. Sess.), ch. 33 read:

“If any provision of this Act or the application thereof to any person or circumstance is held invalid, the entire Act shall be invalid, and to this end the provisions of this Act are not severable.”

NOTES TO DECISIONS

Cited:

Covington v. Court of Justice, 784 S.W.2d 180, 1990 Ky. LEXIS 13 ( Ky. 1990 ); Horn by Horn v. Commonwealth, 916 S.W.2d 173, 1995 Ky. LEXIS 145 ( Ky. 1995 ).

Research References and Practice Aids

Kentucky Law Journal.

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 Administrative Office of the Courts — Forms, § 7.00.

27A.052. Circuit Court clerk salary account.

  1. The Circuit Court clerk salary account is created as a trust and agency account in the State Treasury to be administered by the Administrative Office of the Courts. The account shall consist of the portion of fees directed to the account under KRS 186.531 and any other proceeds from grants, contributions, appropriations, or other moneys made available for the purposes of the account.
  2. Notwithstanding KRS 45.229 , any moneys remaining in the account not expended at the close of a fiscal year shall not lapse but shall be carried forward to the next fiscal year.
  3. Any interest earnings of the account shall become a part of the account and shall not lapse.
  4. Moneys in the account shall be used for the purposes of hiring additional deputy circuit clerks and providing salary adjustments to deputy circuit clerks and are hereby appropriated for these purposes.

HISTORY: 2017 ch. 100, § 22, effective January 1, 2019; 2020 ch. 51, § 37, effective March 27, 2020.

27A.060. Administrative Office of the Courts to maintain list of organizations to which persons sentenced to community labor for driving under the influence may work.

The Administrative Office of the Courts shall:

  1. Maintain a list of eligible organizations for whom persons sentenced under KRS 189A.020 may perform community service work and which have agreed to make proper reports to the court.
  2. Develop and distribute such forms as necessary to ensure compliance with the reporting provisions of KRS 189A.020 .

History. Enact. Acts 1984, ch. 165, § 13, effective July 13, 1984.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Administrative Office of the Courts — Forms, § 7.00.

27A.070. Administrative Office of the Courts to send notices of felony convictions to the State Board of Elections.

The Administrative Office of the Courts shall send certified notices of conviction of a felony to the State Board of Elections within ten (10) days after the conviction becomes final, including the exhaustion of all appeals, with regard to any person before the courts of the Commonwealth.

History. Enact. Acts 1988, ch. 341, § 3, effective July 15, 1988.

27A.080. Juvenile court records to be deposited with Administrative Office of the Courts — Availability of records.

  1. The Administrative Office of the Courts shall be the primary repository of court records of juveniles charged with, arrested for, and against whom complaints have been filed, involving status offenses, public offenses, and youthful offender proceedings, together with all court records of the handling and disposition of those cases, and shall keep and maintain these records.
  2. The Administrative Office of the Courts shall make juvenile records available to the agencies and persons specified by law.
  3. All courts, law enforcement agencies, prosecutors, the Department of Juvenile Justice, the Cabinet for Health and Family Services, the Justice and Public Safety Cabinet, except the Department of Public Advocacy, and other agencies holding records coming within the purview of subsection (1) of this section shall make them available to the Administrative Office of the Courts in the manner and at the times specified by the Administrative Office of the Courts.

HISTORY: Enact. Acts 1996, ch. 358, § 4, effective July 15, 1996; 1998, ch. 426, § 79, effective July 15, 1998; 2005, ch. 99, § 99, effective June 20, 2005; 2007, ch. 85, § 110, effective June 26, 2007; 2017 ch. 167, § 8, effective June 29, 2017.

Compiler’s Notes.

Section 67 of Acts 1996, ch. 358 read:

“The following effective date implementation schedule shall apply to this Act:

“(1) Implementation of procedural provisions relating to the trial or adjudication of juveniles, other than assignment of juveniles to the custody or jurisdiction of the Department of Juvenile Justice shall become effective July 15, 1997;

“(2) Implementation on release and sharing of juvenile records, other than provisions relating specifically to the Administrative Office of the Courts, normal effective date for 1996 legislation;

“(3) Creation of the Department of Juvenile Justice, authority to form the department and staff and train employees, normal effective date for 1996 legislation, however all functions assigned to the department shall become effective July 1, 1997;

“(4) Transfer of personnel, facilities, and funds from the Cabinet for Human Resources to the Department of Juvenile Justice, authority to take Action on the normal effective date for 1996 legislation, however all actions required to implement the provisions of this Act shall be taken by not later than July 1, 1997;

“(5) Transfer of record-keeping functions to the Administrative Office of the Courts, records possessed by the Administrative Office of the Courts on the effective date of this Act and thereafter shall be governed by the provisions of this Act on the normal effective date for 1996 legislation, however all matters for record sharing and interagency record availability shall be fully implemented not later than July 15, 1998; and

“(6) Implementation of any provision not otherwise specified shall become effective July 15, 1997.”

Section 68 of Acts 1996, ch. 358 read:

“The Administrative Office of the Courts shall implement the juvenile record-keeping duties assigned to it no later than July 15, 1998. In order to provide necessary liaison, the following agencies shall cooperate in the implementation of the juvenile record system, and the administrator of each agency or his designee shall constitute a working group toward that end. The Director of the Administrative Office of the Courts shall chair the group. Members of the group shall design and implement a program whereby agencies in the working group and other agencies which have a need for juvenile information may acquire it.

“(1) Administrative Office of the Courts;

“(2) Attorney General;

“(3) Justice Cabinet; and

“(a) Kentucky State Police;

“(b) Department of Corrections;

“(c) Department of Juvenile Justice;

“(4) Cabinet for Families and Children;

“(5) Circuit Clerks Association;

“(6) County Attorneys Association; and

“(7) Department of Information Services.”

Legislative Research Commission Notes.

(6/26/2007). Although 2007 Ky. Acts ch. 85, sec. 110, contains references to the “Department of Public Advocacy,” the entity created by 2007 Ky. Acts ch. 85, secs. 7 and 40, and Executive Order 2006-805 is the “Department for Public Advocacy.” In accordance with 2007 Ky. Acts ch. 85, sec. 335, and KRS 7.136 , the erroneous references in this section have been corrected in codification.

27A.090. Criminal records check performed for Justice and Public Safety Cabinet — Fee — Request conditions.

  1. In any instance that the Justice and Public Safety Cabinet is required by statute to conduct a criminal records or background check, the Justice and Public Safety Cabinet may contract with the Administrative Office of the Courts to perform that service.
    1. Except as provided in paragraph (b) of this subsection, the Administrative Office of the Courts shall set a reasonable fee for a criminal records check conducted by the office in an amount no greater than the actual cost of conducting that criminal records check. (2) (a) Except as provided in paragraph (b) of this subsection, the Administrative Office of the Courts shall set a reasonable fee for a criminal records check conducted by the office in an amount no greater than the actual cost of conducting that criminal records check.
    2. When another statute sets the dollar amount of the fee charged for a criminal records check conducted by the Administrative Office of the Courts, the office shall charge that fee.
  2. The Administrative Office of the Courts shall be required to accept a criminal records check request only when the request is made:
    1. By letter, electronic mail, or facsimile transmission; or
    2. In person.
  3. The Administrative Office of the Courts may establish an escrow account for a person who frequently requests that the office conduct criminal records checks.

History. Enact. Acts 2000, ch. 283, § 2, effective July 14, 2000; 2007, ch. 85, § 111, effective June 26, 2007.

Legislative Research Commission Notes.

(6/26/2007). 2007 Ky. Acts ch. 85, relating to the creation and organization of the Justice and Public Safety Cabinet, instructs the Reviser of Statutes to correct statutory references to agencies and officers whose names have been changed in that Act. Such a correction has been made in this section.

27A.092. Administrative Office of the Courts to provide Department of Kentucky State Police with information on applicants for and holders of concealed deadly weapon license.

  1. The Administrative Office of the Courts shall support the responsibilities of the Department of Kentucky State Police in the administration of KRS 237.110 by providing information:
    1. Possessed by the courts with regard to the suitability of an applicant for a license under KRS 237.110 ; and
    2. Possessed by the courts which may result in the revocation or suspension of a license issued pursuant to KRS 237.110.
  2. The Administrative Office of the Courts shall transmit information regarding a licensee which may result in the revocation or suspension of a license issued pursuant to KRS 237.110 as soon as practicable.
  3. The Administrative Office of the Courts shall not conduct a National Instant Criminal Background Check System (NICS) check for the Department of Kentucky State Police.
  4. For purposes of conducting the continual background check on licensees pursuant to KRS 237.110 , the Department of Kentucky State Police may provide a list of licensees to the Administrative Office of the Courts. The list of persons holding a license pursuant to KRS 237.110 shall be held confidential by the Administrative Office of the Courts and shall be used only for purposes specified in this section and KRS 237.110. Information regarding licensees or applicants for a license shall be transmitted only to the Department of Kentucky State Police and shall not be distributed to any other person or organization within or without the Administrative Office of the Courts or the Court of Justice. The provisions of this section shall not be construed to prohibit or limit the distribution of information to or about any person which is authorized to be distributed by law, but the fact that the person is an applicant for or holds a license pursuant to KRS 237.110 shall not be distributed.

History. Enact. Acts 2006, ch. 240, § 12, effective July 12, 2006; 2007, ch. 85, § 112, effective June 26, 2007.

27A.095. Standard power of attorney regarding medical treatment and school-related decisions for a minor.

  1. As used in this section, “medical treatment” means any medical, chiropractic, optometric, or dental examination, diagnostic procedure, and treatment, including but not limited to hospitalization, developmental screening, mental health screening and treatment, preventive care, pharmacy services, immunizations recommended by the federal Centers for Disease Control and Prevention’s Advisory Committee on Immunization Practices, well-child care, and blood testing, except that “medical treatment” shall not include HIV/AIDS testing, controlled substance testing, or any other testing for which a separate court order or informed consent is required under other applicable law.
  2. The Administrative Office of the Courts shall develop a standard power of attorney for the limited purpose of establishing authority to consent to medical treatment for a minor and to make school-related decisions for a minor.
  3. The standard power of attorney developed under subsection (2) of this section shall be available through the Cabinet for Health and Family Services and the office of the circuit clerk where the informal caregiver resides.

History. Enact. Acts 2006, ch. 198, § 2, effective July 12, 2006.

27A.096. Judicial guidelines for pretrial release of moderate-risk or high-risk defendants.

  1. The Supreme Court shall establish recommended guidelines for judges to use when ordering pretrial release and monitored conditional release for defendants whose pretrial risk assessments indicate that they are moderate or high risk and would otherwise be ordered to a local correctional facility while waiting for trial.
  2. The Supreme Court shall establish recommended guidelines for judges to use to determine whether defendants whose pretrial risk assessments indicate that they are moderate or high risk are eligible for pretrial supervision.
  3. Judges shall consider the guidelines established by the Supreme Court pursuant to this section when setting terms of pretrial supervision.

History. Enact. Acts 2011, ch. 2, § 44, effective June 8, 2011.

27A.097. Evidence-based practices to be used in supervision and intervention programs — Standards — Funding restrictions.

  1. As used in this section, “evidence-based practices” means intervention programs and supervision policies, procedures, programs, and practices that scientific research demonstrates reduce instances of a defendant’s failure to appear in court and criminal activity among defendants when implemented competently.
  2. In order to increase the effectiveness of supervision and intervention programs funded by the state and provided to defendants, the Supreme Court shall require that a vendor or contractor providing supervision and intervention programs for adult criminal defendants use evidence-based practices.
  3. The Supreme Court shall measure the effectiveness of supervision and intervention programs provided by vendors or contractors and demonstrate that the programs have a documented evidence base and have been evaluated for effectiveness in reducing a defendant’s failure to appear in court and criminal activity.
  4. The Supreme Court shall require, at a minimum, the following:
    1. A process for reviewing the objective criteria for evidence-based practices established by the vendor or contractor providing the program;
    2. A process for auditing the effectiveness of the program;
    3. An opportunity for programs that do not meet the criteria based on the audit results to improve performance; and
    4. A mechanism to defund any program provided by a vendor or contractor that does not meet the criteria upon a second audit.
  5. Beginning July 1, 2012, twenty-five percent (25%) of state moneys expended on supervision and intervention programs for pretrial defendants shall be for programs that are in accordance with evidence-based practices. Beginning July 1, 2014, fifty percent (50%) of state moneys expended on supervision and intervention programs shall be for programs that are in accordance with evidence-based practices. Beginning July 1, 2016, and thereafter, seventy-five percent (75%) of state moneys expended on supervision and intervention programs shall be for programs that are in accordance with evidence-based practices.

History. Enact. Acts 2011, ch. 2, § 49, effective July 1, 2013; 2012, ch. 156, § 11, effective July 12, 2012; 2013, ch. 69, § 8, effective June 25, 2013.

Legislative Research Commission Notes.

(7/1/2013). This statute was created by 2011 Ky. Acts ch. 2, sec. 49, effective July 1, 2013, and subsequently amended by 2012 Ky. Acts ch. 156, sec. 11, effective July 12, 2012, and 2013 Ky. Acts ch. 69, sec. 8, effective June 25, 2013. In accordance with KRS 446.320 , the 2012 and 2013 amendments did not hasten the effective date of this statute because the General Assembly did not clearly indicate that such was its intention by a change in the effective date.

27A.098. Annual report on state-funded crime reduction and recidivism reduction efforts.

The Chief Justice shall submit an annual report to the Interim Joint Committee on Judiciary by November 1 of each year that provides information on state-funded crime reduction and recidivism reduction efforts, including participation in intervention programming, public safety outcomes, and cost effectiveness. The report shall, at a minimum, include:

  1. The percentage of defendants on pretrial supervision who appear for court and do not commit a new crime;
  2. The percentage of drug court clients who successfully complete drug court;
  3. The percentage of drug court clients who are arrested, convicted, and incarcerated within six (6) months, one (1) year, and three (3) years of successful completion of drug court; and
  4. The amount of restitution paid while in drug court.

History. Enact. Acts 2011, ch. 2, § 64, effective November 1, 2013.

27A.099. Deferred prosecution — Application — Listing of persons with records sealed.

  1. The Administrative Office of the Courts shall create an application for use by a defendant requesting deferred prosecution under KRS 218A.14151 which shall include a space for the defendant to indicate all prior convictions and expungements.
  2. The Chief Justice may authorize the Administrative Office of the Courts to develop, collect, and maintain a listing of persons who have had their records sealed under KRS 218A.14151 , 218A.275 , and 218A.276 . The list may be utilized by the courts and attorneys practicing in the courts to determine whether the person is eligible to participate in a deferred prosecution under KRS 218A.14151 or a treatment or recovery program under KRS 218A.275 or 218A.276 .

History. Enact. Acts 2011, ch. 2, § 100, effective June 8, 2011.

Judicial Council

27A.100. Membership.

  1. There is hereby created a Judicial Council composed of the following persons: The Chief Justice of the Supreme Court or his designee from among the members of that court; the Chief Judge of the Court of Appeals or his designee from among the members of that court; four (4) Circuit Judges, and four (4) District Judges, all of whom shall be appointed by the Chief Justice of the Supreme Court; the president of the Kentucky Association of Circuit Court Clerks; three (3) members of the State Bar of Kentucky who shall be appointed by its board of governors; and the chairmen of the Judiciary Committees of the House of Representatives and of the Senate, or the vice chairman of any of these committees if the chairman declines to serve.
  2. The appointed members shall serve for a term of four (4) years and until their successors are appointed and qualify. Vacancies in the office of appointed members shall be filled by the original appointing authority.
  3. The Chief Justice of the Supreme Court shall be the chairman of the council, or if he is not a member or declines to serve as chairman, a member of the council shall be appointed by him to serve as chairman. The administrative director of the courts shall serve as secretary.

History. Enact. Acts 1976, ch. 61, § 4; 1978, ch. 384, § 7, effective June 17, 1978.

27A.110. Functions of Judicial Council.

The Judicial Council shall serve in an advisory capacity only. It shall give continuing consideration to the administration of justice in the courts of the Commonwealth. It may submit from time to time to the Supreme Court, either upon request or on its own motion, such recommendations as it may deem advisable for changes in rules, practice, procedure, or other matters pertaining to the judicial system.

History. Enact. Acts 1976, ch. 61, § 5.

27A.120. Meetings of Judicial Council.

The Judicial Council shall meet at least twice each year at such times and places as shall be designated by its chairman and shall hold such other meetings as shall be called by the chairman.

History. Enact. Acts 1976, ch. 61, § 6.

27A.130. Compensation — Expenses.

Members of the Judicial Council shall receive no compensation for their services, but shall be allowed their necessary expenses while on the business of the council. All claims for expenses shall be approved by the Chief Justice of the Supreme Court or his designee and shall be paid out of the State Treasury.

History. Enact. Acts 1976, ch. 61, § 7.

27A.140. Termination of certain terms. [Repealed.]

Compiler’s Notes.

This section (Acts 1976, ch. 61, § 10) was repealed by Acts 1978, ch. 384, § 584, effective June 17, 1978.

State Law Library

27A.200. State law library created — Appointment of librarian.

  1. There is created, in the Administrative Office of the Courts, a state law library which shall be under the supervision, management, and control of the administrative assistant to the Chief Justice designated by the Chief Justice.
  2. The administrative assistant shall appoint a state law librarian who shall:
    1. Serve at the pleasure of the Chief Justice;
    2. Appoint such assistant state law librarians and other employees as shall be necessary;
    3. Manage the state law library and perform such other tasks as may be assigned relative thereto.

History. Enact. Acts 1976, ch. 61, § 8.

27A.210. Books and records.

  1. The following books and records shall be maintained by the State Law Library:
    1. All copies of Volumes 1 to 77 of the Kentucky Reports;
    2. Twenty-five (25) copies each of Volumes 78 to 314 of the Kentucky Reports;
    3. Two (2) sets of all future publications of the journals and nine (9) sets of the Acts of the General Assembly; and
    4. Two (2) sets of the official Kentucky statute publications.
  2. The state law librarian shall arrange with the proper official of each state of the United States and of the United States and its territories for the exchanges of the statutes and the acts of the legislatures of each state and of Congress. When an exchange is agreed upon, the state law librarian shall send to the officer one (1) copy of the Acts of the General Assembly and one (1) set of statutes as soon as they are ready for distribution.
  3. Copies of acts, statutes, and other materials required to be kept by the state law librarian and to be made available for exchange shall be furnished to the state law librarian, without charge, by the agency or official responsible for the distribution of same.
  4. The state law librarian may arrange for the distribution or disposal of materials held by the State Law Library upon concurrence of the administrative assistant to the Chief Justice responsible for law library operations.
  5. The state law librarian may acquire, by purchase, exchange, donation, or otherwise, books and other materials the librarian deems suitable for the holdings of the State Law Library.
  6. The state law librarian may, with the concurrence of the administrative assistant to the Chief Justice responsible for law library operations, sell any surplus books in the State Law Library that have a market value, collect the funds received therefor, and deposit them in the “State Law Library Surplus Books Fund,” which is hereby created in the State Treasury. The “State Law Library Surplus Books Fund” shall not lapse. The state law librarian may reinvest the funds in other books and materials that the librarian deems suitable for the holdings of the State Law Library. The provisions of KRS 45A.045(5) concerning the powers and duties of the Finance and Administration Cabinet shall not apply to sales made by the state law librarian under this section.
  7. The state law librarian may, with the concurrence of the administrative assistant to the Chief Justice responsible for law library operations, offer and provide technical and other assistance to county law libraries and to other publicly funded law libraries.
  8. The state law librarian may, upon the request of a county law library or other publicly funded law library and with the concurrence of the administrative assistant to the Chief Justice responsible for law library operations, purchase books, supplies, or other materials for the library. The funds used for these purposes shall be those of the county law library or other publicly funded law library.
  9. The state law librarian shall issue, with the concurrence of the administrative assistant to the Chief Justice responsible for law library operations, regulations for the operation, management, and lending policy of the State Law Library.

History. Enact. Acts 1976, ch. 61, § 9; 1976 (Ex. Sess.), ch. 14, § 7; 1982, ch. 316, § 1, effective July 15, 1982; 1990, ch. 496, § 26, effective July 13, 1990; 1997 (1st Ex. Sess.), ch. 4, § 14, effective May 30, 1997.

Criminal Justice Statistics

27A.300. Duties of Administrative Office of the Courts in regard to centralized criminal history record information system.

  1. The Administrative Office of the Courts shall, in cooperation with the Department of Kentucky State Police, the Department of Juvenile Justice, the Cabinet for Health and Family Services, and the Department of Corrections, be responsible for the recording of those data elements that are needed for development of the centralized criminal history record information system.
  2. The database shall at a minimum contain the information contained in KRS 27A.310 to 27A.440 .
  3. The Administrative Office of the Courts shall provide access to the Department of Kentucky State Police, the Department of Juvenile Justice, the Cabinet for Health and Family Services, and the Department of Corrections to its database.
  4. The Administrative Office of the Courts shall, where the number is known, assign the same identification number or other variable to each person whose name appears in the database.

History. Enact. Acts 1986, ch. 389, § 2, effective July 15, 1986; 1992, ch. 211, § 8, effective July 14, 1992; 1998, ch. 606, § 16, effective July 15, 1998; 2005, ch. 99, § 100, effective June 20, 2005; 2007, ch. 85, § 113, effective June 26, 2007.

Legislative Research Commission Notes.

(6/26/2007). The numbering of subsections in this section has been altered by the Reviser of Statutes from the numbering in 2007 Ky. Acts ch. 85, sec. 113, under the authority of KRS 7.136 .

27A.302. New or updated software to allow redesignation as misdemeanor if felony case concludes with only misdemeanor conviction.

The Administrative Office of the Courts shall require that any updates to or replacements of the centralized criminal history record information system established by this chapter or any case management software utilized in the offices of the Commonwealth’s circuit clerks have the capability for those felony cases that reach final disposition with a conviction for a misdemeanor only to be redesignated with the same type of case designators as those used for cases that are initiated as misdemeanor cases.

History. Enact. Acts 2013, ch. 89, § 5, effective March 22, 2013.

27A.305. Collection of statistical data concerning sexual offenses.

  1. The Administrative Office of the Courts shall collect statistical data regarding the prosecution, dismissal, conviction, or acquittal of any person charged with committing, attempting to commit, or complicity to a sexual offense as defined by KRS 510.040 , 510.050 , 510.060 , 510.070 , 510.080 , 510.090 , 510.110 , 510.120 , 510.130 , 510.140 , 530.020 , 530.064(1)(a), and 531.310 .
  2. The information collected pursuant to this section for the previous calendar year shall be provided by May 1 of 2018 and by each May 1 thereafter to the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707 .

HISTORY: 2016 ch. 58, § 7, effective April 8, 2016.

Legislative Research Commission Notes.

(4/8/2016). 2016 Ky. Acts ch. 58, sec. 11 provided that that Act shall be known as the Sexual Assault Forensic Evidence (SAFE) Act of 2016. This statute was created in Section 7 of that Act.

27A.310. Seven levels of information for centralized criminal history record information system.

The centralized criminal history record information system shall consist of a minimum of seven (7) levels of information as follows:

  1. Information relating to the offender;
  2. Information relating to the arrest;
  3. Information relating to the prosecution and action by the grand jury (when the case is brought before the grand jury) action upon the case;
  4. Information relating to the court disposition of the case;
  5. Information relating to sentencing;
  6. Information relating to the handling of the offender if he is received by a correctional or other institution; and
  7. Programs and information designed to enable the General Assembly, executive branch agencies, and others to assess the efficiency, functioning, and other aspects of the operation of the criminal justice system.

History. Enact. Acts 1986, ch. 389, § 7, effective July 15, 1986.

27A.320. Offender level.

The offender level of the system shall consist of at least the following information:

  1. Name of the offender, including other names by which he is known;
  2. Date of birth;
  3. Sex;
  4. Race;
  5. Ethnic origin;
  6. Residence address at time of arrest; and
  7. Personal identification number.

History. Enact. Acts 1986, ch. 389, § 8, effective July 15, 1986.

27A.330. Arrest level.

The arrest level of the system shall consist of at least the following information:

  1. Name of offender, together with personal identification number (if known);
  2. Arresting agency;
  3. Date, place and time of offense;
  4. Number of arrest charges;
  5. Listing of arrest charges by name, KRS number and citation number;
  6. Charge sequence and incident number;
  7. Level of arrest charged or degree of offense charged;
  8. Date, time, and place of arrest;
  9. If a theft or criminal damage to property offense, the dollar amount of property damaged or stolen;
  10. Exact disposition of the case by police following arrest; and
  11. Date of disposition of the case by the police.

History. Enact. Acts 1986, ch. 389, § 9, effective July 15, 1986.

27A.340. Prosecution/grand jury level.

The prosecution/grand jury level of the system shall consist of at least the following information:

  1. Listing of each charged offense by name and KRS number;
  2. Level of offense charged or degree of offense charged for each offense in subsection (1) of this section;
  3. Number of charged offenses;
  4. If the case was disposed of by the prosecutor, the nature of such disposition and the date of such disposition;
  5. A listing of the charges disposed of in subsection (4) of this section;
  6. A correlation of the number of offenses charged at arrest and the number of offenses brought before the grand jury, offense by offense;
  7. Listing of each charged offense, and the level thereof, brought before the grand jury;
  8. Listing of the disposition of each charged offense brought before the grand jury;
  9. Date of indictment;
  10. Listing of each charged offense, and the level thereof, for which the offender was indicted;
  11. Listing of the number of criminal complaints brought before the prosecutor by written complaint, the offense alleged, and the disposition thereof; and
  12. Listing of the number of criminal complaints sought by citizens upon which no action was taken by the prosecutor, the offense alleged, and the date of disposition.

All data required by this section shall be supplied to the circuit clerk by each Commonwealth’s and county attorney, if it is not already in the possession of the clerk.

History. Enact. Acts 1986, ch. 389, § 10, effective July 15, 1986.

27A.350. Court disposition level relating to arraignment.

The court disposition level of the system shall consist of at least the following information as relates to the arraignment:

  1. The court which disposed of the offense;
  2. The name of the judge presiding at the time of disposition;
  3. Date of arraignment;
  4. Listing of each charged offense, and the level thereof, brought before the court at the arraignment;
  5. Listing of the disposition of each charged offense, and the level thereof disposed of by the court at the arraignment; and
  6. Defendant’s plea to each offense at the arraignment.

History. Enact. Acts 1986, ch. 389, § 11, effective July 15, 1986.

27A.360. Court disposition level relating to bond and pretrial release.

The court disposition level of the system shall consist of at least the following information as relates to bond and pretrial release:

  1. Whether or not the defendant was released on bail or pretrial release;
  2. If released on bail:
    1. The amount of the bail;
    2. Whether the bail was cash, property, a percentage of cash bail, secured, unsecured, or otherwise;
    3. Whether the conditions of bail were satisfied; and
    4. Whether or not the bail was returned, forfeited, credited to the public advocate or otherwise;
  3. If released on any other form of pretrial release:
    1. Whether or not released on own recognizance;
    2. Whether release was upon conditions, if so what conditions; and
    3. Whether the conditions of release were satisfied.

History. Enact. Acts 1986, ch. 389, § 12, effective July 15, 1986.

27A.370. Court disposition level relating to counsel.

The court disposition level of the system shall consist of at least the following information as relates to counsel:

  1. Did the defendant have counsel;
  2. Did the defendant retain private counsel;
  3. Was counsel provided by the public advocate;
  4. If counsel was provided by the public advocate:
    1. Was reimbursement sought;
    2. What was the amount of reimbursement sought;
    3. What was the amount of reimbursement paid; and
    4. What amount was recovered from bail money;
  5. Did the defendant have more than one (1) counsel; if so, the number of counsel.

History. Enact. Acts 1986, ch. 389, § 13, effective July 15, 1986.

27A.380. Court disposition level relating to type of trial.

The court disposition level of the system shall consist of at least the following information as relates to the type of trial:

  1. Jury trial; or
  2. Trial before the judge.

History. Enact. Acts 1986, ch. 389, § 14, effective July 15, 1986.

27A.390. Court disposition level relating to offenses charged and offenses disposed of.

The court disposition level of the system shall consist of at least the following information as relates to the offenses charged and the offenses disposed of:

  1. The court which disposed of the offense;
  2. The name of the presiding judge;
  3. Date upon which the trial began;
  4. The final pleading, as to each charged offense and the level thereof;
  5. Listing of charged offenses disposed of by the court together with:
    1. Date of disposition;
    2. Listing of each offense and the KRS number, name and level;
    3. Whether the offense was dismissed in exchange for a guilty plea on another offense; and
    4. Number of offenses disposed of by the court;
  6. Listing of offenses for which the defendant was convicted by KRS number, name and level;
  7. Number of convicted offenses; and
  8. Date of conviction.

History. Enact. Acts 1986, ch. 389, § 15, effective July 15, 1986.

27A.400. Sentencing level relating to sentence imposed.

The sentencing level of the system shall consist of at least the following information as relates to the sentence imposed:

  1. Sentencing date;
  2. Sentence for each offense;
  3. If sentenced to imprisonment:
    1. Place of imprisonment;
    2. Sentence minimum for each offense;
    3. Sentence maximum for each offense;
    4. Consecutive multiple incarceration;
    5. Concurrent multiple incarceration;
    6. Was the defendant sentenced without privilege of parole for twenty-five (25) years; and
    7. If answer to paragraph (f) of this subsection is yes, which aggravating circumstance or circumstances were found;
  4. If sentenced to a fine:
    1. The amount of the fine;
    2. Is the fine to be paid in installments;
    3. If answer to paragraph (b) of this subsection is yes, amount of each installment;
    4. Was the fine paid in full upon conviction;
    5. If not, what amount was paid; and
    6. How much of money held for bail was used in payment of the fine;
  5. If any other sentence was imposed:
    1. The nature of the sentence;
    2. Was conditional discharge imposed and what were the conditions of the discharge;
    3. Was restitution imposed;
    4. If restitution was imposed, what were the conditions of restitution;
    5. If monetary restitution was imposed, what was the amount;
    6. Was the amount paid in full upon conviction;
    7. If restitution was to be paid in installments, what is the amount of each installment and to whom is it to be paid; and
    8. List any other type of sentence imposed;
  6. Were court costs imposed:
    1. The amount of the costs;
    2. Are the costs to be paid in installments;
    3. If answer to paragraph (b) of this subsection is yes, the amount of each installment;
    4. Were the costs paid in full upon conviction; and
    5. If not, how much was paid;
  7. Was a crime victim compensation fund cost imposed:
    1. The amount imposed;
    2. Is this amount to be paid in installments;
    3. If answer to paragraph (b) of this subsection is yes, the amount of each installment;
    4. Was the crime victim compensation fund cost paid in full upon conviction; and
    5. If not, how much was paid;
  8. List all other fees, costs, and similar monetary penalties which were imposed but not listed above:
    1. List separately the amount of each;
    2. List separately each to be paid in installments;
    3. List separately the amount of each installment;
    4. Were these costs paid in full upon conviction; list each; and
    5. If not, list the amount paid on each.

History. Enact. Acts 1986, ch. 389, § 16, effective July 15, 1986.

27A.410. Sentencing level relating to probation or other nonimposition of sentence.

The sentencing level of the system shall consist of at least the following information in regard to probation or other nonimposition of the sentence:

  1. List separately any conviction for which sentence was imposed but was probated, suspended, or otherwise not imposed;
  2. Was probation or nonimposition of the sentence conditioned in any manner:
    1. List the conditions; and
    2. What is the method of monitoring compliance with the conditions;
  3. If a portion of a fine or other cost was probated or otherwise not imposed:
    1. List for each offense the amount of the fine not imposed; and
    2. List for each offense the amount of court costs or other costs or fees not imposed;
  4. If a sentence of imprisonment was not imposed or a portion thereof was not imposed:
    1. List the offense, the sentence, and the amount not imposed; and
    2. If return to confinement or other imprisonment was a condition of nonimposition of a sentence, list the conditions thereof.

History. Enact. Acts 1986, ch. 389, § 17, effective July 15, 1986.

27A.420. Sentencing level relating to plea bargaining.

The sentencing level of the system shall consist of at least the following information in regard to plea bargaining:

  1. Did the defendant plead guilty to any offense in exchange for a lesser penalty or in exchange for dropping other charges against him;
  2. If the answer to subsection (1) of this section is yes:
    1. What offenses and levels of offense was a guilty plea accepted to; list each separately; and
    2. What offenses and levels of offense were dismissed in exchange for a plea of guilty; list each separately;
  3. What punishment was imposed for each offense for which a plea of guilty was accepted in exchange for a lesser penalty or in exchange for dropping charges:
    1. Imprisonment; list offense and term of imprisonment for each offense separately; and
    2. Fine; list offense, and amount of fine for each offense separately;
  4. Was probation, suspended sentence or any other nonimposition of sentence imposed for any offense where a plea of guilty was made in exchange for a lesser penalty or in exchange for dropping other charges:
    1. Describe each separately; and
    2. Describe any conditions placed upon each; list separately.

History. Enact. Acts 1986, ch. 389, § 18, effective July 15, 1986.

27A.430. Institutional level.

The institutional level of the system shall consist of at least the following information:

  1. Date of institutionalization;
  2. Type of incoming action;
  3. If defendant sentenced to death:
    1. First scheduled date of execution;
    2. Date defendant executed;
    3. Date sentence commuted in lieu of execution;
    4. Sentence to which sentence of death was commuted;
  4. Date defendant released from institution;
  5. Type of release from institution;
  6. If the offender is released on parole:
    1. Offense for which convicted;
    2. Maximum expiration date;
    3. Minimum expiration date;
    4. Was the parole supervision fee imposed;
    5. What was the amount actually imposed for the parole supervision fee;
    6. What amount of the parole supervision fee was actually collected;
    7. Was restitution ordered as part of conditions of the parole;
    8. What amount of restitution was ordered;
    9. What amount of restitution has been paid;
    10. Was a victim impact statement presented to the parole board; did it favor the release of the offender;
    11. Did the prosecutor present a statement to the parole board; did it favor the release of the offender; and
    12. Did the victim or a representative of the victim appear before the parole board; did he favor the release of the offender;
  7. If the offender released on parole violates parole or is rearrested:
    1. What was the specific parole violation;
    2. Was the offender arrested for the violation;
    3. What was the outcome of the parole violation hearing;
    4. Was the offender reinstitutionalized;
    5. If arrested for a new criminal offense, list the KRS number, name, and level of the offense;
    6. Was the offender subsequently convicted thereof;
    7. Was the offender reinstitutionalized for the offense; and
    8. Was the offender placed on probation for the offense.

History. Enact. Acts 1986, ch. 389, § 19, effective July 15, 1986.

27A.440. Informational and evaluational level.

The informational and evaluational level of the system shall consist of at least the following information:

  1. KRS numbers, names and levels of offenses;
  2. Updates of information on:
    1. Payment of fines;
    2. Payment of costs;
    3. Payment of restitution amounts;
    4. Payment of court-ordered monetary penalties other than the above; and
    5. Satisfaction of other types of court-ordered restitution;
  3. Cases in which shock probation has been granted:
    1. In such cases all information required for KRS 27A.410 and 27A.420 shall be entered for each case as an update to that person’s file; and
    2. Extracted data on shock probation shall be placed in the annual report of the Administrative Office of the Courts.

History. Enact. Acts 1986, ch. 389, § 20, effective July 15, 1986.

27A.450. Information submitted by circuit clerk a public record open to public inspection — Subject of record to have access to all records relating to himself — Limitation.

Information submitted by the circuit clerk to the Administrative Office of the Courts shall be a public record and shall be open to public inspection pursuant to KRS Chapter 61. KRS 17.150 excludes centralized criminal history records from public inspection; however, the subject of a record contained in that system shall have access to records relating to himself, subject to limitations set forth in KRS 17.150 and federal regulations.

History. Enact. Acts 1986, ch. 389, § 21, effective July 15, 1986.

27A.455. Access to records by Department of Juvenile Justice.

The Department of Juvenile Justice shall have access to all court records, active and closed, relating to or in the custody of the juvenile session of the District Court or the Administrative Office of the Courts, or both.

History. Enact. Acts 1998, ch. 606, § 15, effective July 15, 1998.

27A.460. Annual report of Administrative Office of the Courts.

The Administrative Office of the Courts shall issue an annual report beginning calendar year 1987 with sufficient detail as to be able to identify, on a county-by-county basis as well as statewide totals, for felony arrest:

  1. Conviction percentages;
  2. Percentages of fines, imprisonment, or other penalty assessment;
  3. Percentage of acquittals;
  4. Percentage of dismissals;
  5. Percentage of pleas as charges;
  6. Percentage of pleas to reduce charges;
  7. Percentage of disposition to guilty as charged by trial;
  8. Percentage of those found guilty of lesser charge by trial;
  9. Percentage of cases where jury trial taken;
  10. Percentage of trials which are bench trials; and
  11. The number of juvenile offenders tried as an adult.

The information gathered shall be available to all agencies involved in the criminal justice system and the public.

History. Enact. Acts 1986, ch. 389, § 22, effective July 15, 1986.

27A.470. Administrative Office of the Courts annual report and Kentucky Uniform Crime Report may be combined.

The Administrative Office of the Courts may combine its annual report in KRS 27A.460 with the Kentucky Uniform Crime Report.

History. Enact. Acts 1986, ch. 389, § 23, effective July 15, 1986; 2011, ch. 2, § 66, effective June 8, 2011.

Nonprofit Legal Services

27A.600. Designation of nonprofit legal services agencies — Funding — Promotion of pro bono legal assistance.

  1. For each judicial district, the Chief Justice of the Commonwealth of Kentucky shall designate a nonprofit agency to operate and administer programs for the provision of legal services to indigent clients involved in civil matters within the judicial district.
    1. This agency shall be the nonprofit legal services organization designated as eligible to receive funds from the federal Legal Services Corporation for the provision of civil legal services to the indigent, if one exists. The nonprofit legal services organization shall receive supplemental funds provided by this section for each county in the district in which it provides service.
    2. At least twelve and one-half percent (12.5%) of any funds appropriated pursuant to subsection (1)(a) shall be used to promote increased participation by the private bar in the delivery of legal services to the indigent through pro bono efforts, which may include the operation of intake and referral systems; the provision of professional education regarding legal matters peculiar to the indigent; the provision of technical co-counselling assistance to private attorneys engaged in representing indigent clients in civil matters; and reimbursement of reasonable costs and expenses incurred by private attorneys in delivering pro bono legal assistance. Nothing in this subsection shall be construed as limiting the maximum amount of funds appropriated under this section which may be used for promotion of pro bono efforts by the private bar, where the local legal services organization’s board of directors deems that an effective and efficient system of delivering legal assistance to the local indigent population would require the allocation of a sum in excess of twelve and one-half percent (12.5%) of the funds disbursed pursuant to this section. The local organization’s board of directors shall annually review the appropriate allocation of funds from this section for the promotion of pro bono services by the private bar.
    3. If any county in the Commonwealth is not currently served by a nonprofit agency eligible to receive funds from the federal Legal Services Corporation, the Chief Justice shall designate a nonprofit agency to provide legal services to indigent clients in civil matters within that county.
  2. In designating an agency pursuant to subsection (1) of this section, the Chief Justice shall consult with the Chief Circuit Judge of the judicial district, the president of the local bar association within the county or the judicial district, and agencies providing legal services to indigent clients in civil matters within the judicial district. The designated agency may serve one (1) or more counties within the judicial district, and designation of a multicounty agency shall be undertaken if consultations indicate that it would promote efficient use of funds. To receive designation, an agency shall certify to the Chief Justice that:
    1. It is incorporated under the laws of the Commonwealth of Kentucky;
    2. It is an organization within the meaning of Section 501 (c) of the Internal Revenue Code of 1986; and
    3. All persons participating in delivery of legal services to agency clients provide the service without any fee to the client for these services.

History. Enact. Acts 1994, ch. 338, § 1, effective July 15, 1994.

Compiler’s Notes.

Section 501(c) of the Internal Revenue Code of 1986 referred to in subsection (2)(b) of this section is compiled as 26 USCS § 501(c).

27A.610. Duties of designated agencies.

The agency designated pursuant to KRS 27A.600 shall have the following duties in carrying out the provisions of KRS 27A.600 to 27A.640 :

  1. To develop, operate, and administer programs within the judicial district or districts served to provide free legal services to indigent clients involved in civil matters within the jurisdiction of the courts or the judicial district or districts.
  2. To report annually to the Supreme Court of Kentucky, through the Administrative Office of the Courts, on its activities conducted pursuant to KRS 27A.600 to 27A.640 .
  3. To maintain an appropriate accounting of all funds received pursuant to KRS 27A.600 to 27A.640 , and to prepare and submit to the Administrative Office of the Courts an annual statement accounting for the use of the funds.
  4. To refund annually all unused or uncommitted funds as provided in KRS 27A.630(4).

History. Enact. Acts 1994, ch. 338, § 2, effective July 15, 1994.

27A.620. Forwarding of designations of agencies to circuit clerks.

All designations made by the Chief Justice pursuant to KRS 27A.600 to 27A.640 shall be forwarded to each circuit clerk for the judicial district or districts which shall be served by the agency designated.

History. Enact. Acts 1994, ch. 338, § 3, effective July 15, 1994.

27A.630. Access to Justice Fee — Deposit in State Treasury — Distribution of fees collected — Funding of legal services for children.

  1. Upon receipt of notice of designation of an agency by the circuit clerk, there shall be added to the filing fee in all civil actions filed in Circuit Court the sum of twenty dollars ($20), and to all civil actions filed in District Court, the sum of ten dollars ($10). No fee shall be charged for actions filed in neglect and dependency cases. This fee shall be designated as the Access to Justice Fee, and shall be charged at the time of filing of the first papers in the action.
  2. All fees collected pursuant to subsection (1) of this section during each month shall be placed in the general fund of the State Treasury, and appropriated in accordance with subsection (3) of this section. The clerks shall make a full report with the payment and receive a receipt for all payments.
  3. Fees collected shall be distributed monthly to the designated agencies on a pro rata basis, utilizing an allocation formula that distributes funds for each judicial district served, according to the proportion of the number of residents of that judicial district whose incomes are less than the official United States federal poverty guidelines, based on latest published United States census data, as a percentage of the total number of these residents in the Commonwealth of Kentucky. These funds shall be used by the designated agency to carry out the duties prescribed in KRS 27A.610 .
  4. All unused or uncommitted funds received by a designated agency during its fiscal year shall be returned by the designated agency to the State Treasury, to be redistributed in the following calendar quarter to operating designated agencies in accordance with administrative regulations promulgated by the Administrative Office of the Courts.
  5. Notwithstanding the provisions of subsections (1) to (4) of this section, an amount not to exceed two hundred thousand dollars ($200,000) from the fee imposed under subsection (1) of this section shall be appropriated to organizations that specialize in providing legal representation and services to children.

History. Enact. Acts 1994, ch. 338, § 4, effective July 15, 1994; 2003, ch. 120, § 1, effective June 24, 2003.

27A.640. Disposition of legal fees awarded for nonprofit or pro bono legal services.

Any fees awarded as a result of legal services provided pursuant to provisions of KRS 27A.600 to 27A.640 shall be payable to the designated agency through which the services were provided and shall be subject to the provisions of KRS 27A.630(4). If fees are recovered by an attorney providing volunteer or pro bono legal services, the attorney may receive reimbursement from the designated agency for transcription and photocopy costs, long distance phone expenses, reasonable travel costs, and similar direct, out-of-pocket expenses.

History. Enact. Acts 1994, ch. 338, § 5, effective July 15, 1994.

CHAPTER 28 Clerks, Stenographic Reporters, Interpreters and Examiners [Repealed]

28.010. Oath of clerks and deputies. [Repealed.]

Compiler’s Notes.

This section (372) was repealed by Acts 1976 (Ex. Sess.), ch. 14, §§ 491, 492(7).

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, G, 1, (2) at 1090.

28.020. Bond of clerks. [Repealed.]

Compiler’s Notes.

This section (373: amend. Acts 1964, ch. 180, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, §§ 491, 492(7).

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.030. Office, how and where kept. [Repealed.]

Compiler’s Notes.

This section (380: amend. Acts 1970, ch. 55, § 8) was repealed by Acts 1976 (Ex. Sess.), ch. 14, §§ 491, 492(7).

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.035. Clerk to prepare bonds. [Repealed.]

Compiler’s Notes.

This section (C.C. 672: trans. & amend. Acts 1952, ch. 84, §§ 1, 24, effective July 1, 1953) was repealed by Acts 1976 (Ex. Sess.), ch. 14, §§ 491, 492(7).

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.036. Clerk to refuse insufficient surety. [Repealed.]

Compiler’s Notes.

This section (C.C. 673: amend. Acts 1952, ch. 84, § 25) was repealed by Acts 1976 (Ex. Sess.), ch. 14, §§ 491, 492(7).

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.040. Oaths, clerks may administer. [Repealed.]

Compiler’s Notes.

This section (380) was repealed by Acts 1976 (Ex. Sess.), ch. 14, §§ 491, 492(7).

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.045. Clerk may administer oaths, take affidavits and make orders of survey. [Repealed.]

Compiler’s Notes.

This section (C.C. 671: trans. & amend. Acts 1952, ch. 84, §§ 1, 23) was repealed by Acts 1976 (Ex. Sess.), ch. 14, §§ 491, 492(7).

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.050. Each day’s proceedings in certain courts to be drawn up, read and signed. [Repealed.]

Compiler’s Notes.

This section (378: amend. Acts 1952, ch. 84, § 47) was repealed by Acts 1976 (Ex. Sess.), ch. 14, §§ 491, 492(7).

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.060. Steps taken in case to be noted and filed. [Repealed.]

Compiler’s Notes.

This section (379: amend. Acts 1952, ch. 84, § 70) was repealed by Acts 1976 (Ex. Sess.), ch. 14, §§ 491, 492(7).

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.070. General index of cases to be kept. [Repealed.]

Compiler’s Notes.

This section (386) was repealed by Acts 1976 (Ex. Sess.), ch. 14, §§ 491, 492(7).

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.080. Executions, record concerning. [Repealed.]

Compiler’s Notes.

This section (376) was repealed by Acts 1976 (Ex. Sess.), ch. 14, §§ 491, 492(7).

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.090. Record of executions, returns and receipts for redemption of land. [Repealed.]

Compiler’s Notes.

This section (375) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.100. Judgment books. [Repealed.]

Compiler’s Notes.

This section (388a-1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.110. Witnesses’ fees, clerks to ascertain. [Repealed.]

Compiler’s Notes.

This section (383) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.120. Taxation of costs. [Repealed.]

Compiler’s Notes.

This section (383, 906) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.130. Record books to comply with state standards. [Repealed.]

Compiler’s Notes.

This section (388: amend. Acts 1944, ch. 163; 1948, ch. 114; 1974, ch. 74, Art. II, § 9(2)) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.135. Procurement of record books and other materials — Payment. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 115) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.140. Records, removal of from county. [Repealed.]

Compiler’s Notes.

This section (377) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.150. Number of actions and indictments to be reported. [Repealed.]

Compiler’s Notes.

This section (385) was repealed by Acts 1976, ch. 28, § 4.

28.160. Franklin circuit clerk to keep separate docket books and files for commonwealth cases — Fees. [Repealed.]

Compiler’s Notes.

This section (976a-1 to 976a-3) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.165. Purchase of supplies and equipment for handling of fiscal cases in Franklin Circuit Court. [Repealed.]

Compiler’s Notes.

This section (Acts 1948, ch. 179; 1970, ch. 92, § 5; 1976, ch. 275, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.170. Collection of fines and forfeitures. [Repealed.]

Compiler’s Notes.

This section (2290-1: amend. Acts 1966, ch. 90; 1974, ch. 74, Art. II, § 9(1)) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.180. Jurors to be paid by circuit clerk — Compensation of clerk. [Repealed.]

Compiler’s Notes.

This section (2290-2: amend. Acts 1944, ch. 162; 1954, ch. 240; 1968, ch. 204, § 2; 1972, ch. 357, § 1; 1974, ch. 74, Art. II, § 9(1)) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.190. Liability for advancements — Reports. [Repealed.]

Compiler’s Notes.

This section (2290-3: amend. Acts 1954, ch. 240; 1964, ch. 177, § 4; 1974, ch. 74, Art. II, § 9(1)) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.200. Settlements with fiduciaries, recording of — Clerk’s fees. [Repealed.]

Compiler’s Notes.

This section (403) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.210. Settlements in circuit court recorded in county court, when — Clerk’s fees. [Repealed.]

Compiler’s Notes.

This section (403a-1, 403a-2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

Section 492(7) of Acts 1976 (Ex. Sess.), ch. 14 provided that the provisions of KRS 28.010 to 28.210 should stand repealed as to Circuit Court clerks and actions in Circuit Court as of July 1, 1977 and as to other clerks and courts on January 2, 1978. For present law, see KRS Ch. 30A.

28.220. Indexer, appointment, term, qualifications and removal of. [Repealed.]

Compiler’s Notes.

This section (908) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

28.230. Indexer, oath and bond of. [Repealed.]

Compiler’s Notes.

This section (910) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

28.240. Indexer, duties of. [Repealed.]

Compiler’s Notes.

This section (909) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

28.250. Indexer, salary of — Assistants. [Repealed.]

Compiler’s Notes.

This section (911: amend. Acts 1942, ch. 180, §§ 4, 7) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

28.260. Desk-room for indexer — Removal of records. [Repealed.]

Compiler’s Notes.

This section (913) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

28.270. Record books, judges may order transcribed. [Repealed.]

Compiler’s Notes.

This section (1632) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

28.280. Preservation of court records. [Repealed.]

Compiler’s Notes.

This section (1633: amend. Acts 1976, ch. 62, § 39) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

28.290. Transcribed records entitled to credit of original. [Repealed.]

Compiler’s Notes.

This section (1634) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491.

28.300. Deputy clerks in counties containing a population of 75,000 or more. [Repealed.]

Compiler’s Notes.

This section (1762, 1763, 1763-1, 1763-2: amend. Acts 1942, ch. 205, §§ 1, 2; 1944, ch. 83; 1946, ch. 95; 1948, ch. 183) was repealed by Acts 1950, ch. 196, § 2.

28.310. Deputy county clerks in certain counties containing a city of the second class; salary of clerk. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 207, §§ 1, 2) was repealed by Acts 1946, ch. 185.

28.320. Attorney general to institute proceedings for forfeiture of office. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 234, § 7) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 30A.

28.410. Appointment of stenographic reporters. [Repealed.]

Compiler’s Notes.

This section (1019a-1, 4637, 4645a-1: amend. Acts 1950, ch. 38, § 1; 1954, ch. 68, § 1; 1962, ch. 260, § 1; 1970, ch. 142, § 1; 1976, ch. 62, § 40) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.420. Oath — Appointment to be recorded. [Repealed.]

Compiler’s Notes.

This section (1019a-2, 4638, 4645a-2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.430. Report of proceedings — Transcript. [Repealed.]

Compiler’s Notes.

This section (1019a-3, 1019a-5, 4639, 4640, 4645a-3: amend. Acts 1952, ch. 84, § 48; 1968, ch. 152, § 15; 1976, ch. 62, § 41) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.435. Use of recording device for recording testimony — Purchase — Definition. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 96, §§ 1 to 3; 1954, ch. 43; 1974, ch. 323, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.440. Compensation of reporters in counties having a population of 150,000 or more. [Repealed.]

Compiler’s Notes.

This section (4639, 4642: amend. Acts 1952, ch. 204; 1956, ch. 14; 1968, ch. 152, § 16; 1970, ch. 92, § 98; 1974, ch. 323, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.450. Compensation of circuit court reporters in counties containing a city of the second class. [Repealed.]

Compiler’s Notes.

This section (1019a-7: amend. Acts 1944, ch. 43, § 1; 1946, ch. 206; 1950, ch. 38, § 2; 1956, ch. 145; 1962, ch. 119, § 4; 1966, ch. 255, § 283; 1970, ch. 130, § 1; 1972, ch. 203, § 2; 1974, ch. 323, § 3) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.460. Fees of reporters in other courts. [Repealed.]

Compiler’s Notes.

This section (4645a-3, 4645a-4: amend. Acts 1946, ch. 206; 1950, ch. 38, § 3; 1962, ch. 221; 1968, ch. 173; 1974, ch. 323, § 4; 1974, ch. 62, § 42) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.470. Transcript or duplicate may be used on appeal. [Repealed.]

Compiler’s Notes.

This section (1019a-8, 4644, 4645a-6) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.480. Special reporter. [Repealed.]

Compiler’s Notes.

This section (1019a-4) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.490. Removal of reporter. [Repealed.]

Compiler’s Notes.

This section (4645, 4645a-7) was repealed by Acts 1954, ch. 68, § 2, effective June 17, 1954.

28.500. Power to take depositions, administer oaths, and coerce witnesses. [Repealed.]

Compiler’s Notes.

This section (4636t-1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 30A.

28.510. Stenographic reporter in certain cities. [Repealed.]

Compiler’s Notes.

This section (2946: amend. Acts 1948, ch. 40; 1964, ch. 136, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 30A.

28.610. Interpreters for certain courts — Appointment — Term — Salary. [Repealed.]

Compiler’s Notes.

This section (1019c-1, 1019c-5, 1020-15, 1020-19: amend. Acts 1976, ch. 62, § 43) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.620. Qualifications of interpreters. [Repealed.]

Compiler’s Notes.

This section (1019c-2, 1020-16) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.630. Oath of interpreter. [Repealed.]

Compiler’s Notes.

This section (1019c-4, 1020-18) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.640. Duties of interpreter. [Repealed.]

Compiler’s Notes.

This section (1019c-3, 1020-17) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.650. Interpreter for police court in cities of first class. [Repealed.]

Compiler’s Notes.

This section (2945: amend. Acts 1966, ch. 255, § 46) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.652. Person who is deaf, mute or both entitled to interpreter. [Repealed.]

Compiler’s Notes.

This section (Acts 1972, ch. 352, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.654. When interpreter shall be appointed. [Repealed.]

Compiler’s Notes.

This section (Acts 1972, ch. 352, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.656. Qualifications of interpreter. [Repealed.]

Compiler’s Notes.

This section (Acts 1972, ch. 352, § 3) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.658. Compensation for interpreters. [Repealed.]

Compiler’s Notes.

This section (Acts 1972, ch. 352, § 4) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 30A.

28.660. Examiners, appointment, oath, tenure. [Repealed.]

Compiler’s Notes.

This section (C.C. 559: trans. Acts 1952, ch. 84, § 1; amend. 1976, ch. 62, § 44) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 30A.

28.665. Examiner’s office. [Repealed.]

Compiler’s Notes.

This section (C.C. 560: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 30A.

28.670. Examiners may administer oaths. [Repealed.]

Compiler’s Notes.

This section (C.C. 561: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law see KRS Ch. 30A.

28.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (379, 380, 387, 388a-2, 4645, 4645a-7) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

CHAPTER 29 Juries [Repealed]

29.005. Number of grand jurors — Number required to find an indictment. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.010. Grand jury consists of twelve persons; qualifications. [Repealed.]

Compiler’s Notes.

This section (2248) was repealed by Acts 1954, ch. 7, § 28.

29.015. Number of petit jurors in circuit courts and inferior courts. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.020. Petit juries — Number of jurors — Qualifications. [Repealed.]

Compiler’s Notes.

This section (2252, 2253) was repealed by Acts 1954, ch. 7, § 28.

29.025. Qualifications of jurors. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 3; 1970, ch. 20, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.030. Persons exempt from jury service. [Repealed.]

Compiler’s Notes.

This section (216aa-22, 2253, 2253a-1, 2253a-2, 2281a-1, 2633, 2636-12, 2711a-145n, 2711a-201, 2776, 2896, 2896a-14, 3047, 3490-16, 4356q, 4399-31, 4503-9: amend. Acts 1942, ch. 4, § 24; 1944, ch. 23, § 1) was repealed by Acts 1954, ch. 7, § 28.

29.035. Exemptions from grand or petit jury service. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 4) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.040. Ineligibility because of previous service or because name not on property valuation administrator’s book. [Repealed.]

Compiler’s Notes.

This section (2247, 2253) was repealed by Acts 1954, ch. 7, § 28.

29.045. Ineligibility because of previous service or because name not on property valuation administrator’s book or voter’s registration book. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 5; 1956, ch. 73) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.050. Jury commissioners — Appointment — Qualifications — Vacancies — Sessions — Meetings secret — Typist. [Repealed.]

Compiler’s Notes.

This section (2241, 2242: amend. Acts 1944, ch. 23, § 2; 1946, ch. 20; 1948, ch. 156) was repealed by Acts 1954, ch. 7, § 28.

29.055. Jury commissioners, appointment, qualifications, vacancies, sessions — Meetings secret — Typist. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 6) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.060. Compensation of commissioners. [Repealed.]

Compiler’s Notes.

This section (2242: amend. Acts 1946, ch. 19; 1952, ch. 2) was repealed by Acts 1954, ch. 7, § 28.

29.065. Compensation of commissioners. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 7; 1968, ch. 204, § 1; 1970, ch. 134, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.070. Selection of names for jury service — Number of names — Filling of drum. [Repealed.]

Compiler’s Notes.

This section (2241: amend. Acts 1944, ch. 23, § 3; 1948, ch. 49) was repealed by Acts 1954, ch. 7, § 28.

29.075. Selection of names for jury service — Number of names — Filling of drum. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 8) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.080. Delivery of drum and key to court — Oath to clerk and deputy — Drum or list not to be opened. [Repealed.]

Compiler’s Notes.

This section (2241: amend. Acts 1944, ch. 23, § 4) was repealed by Acts 1954, ch. 7, § 28.

29.085. Delivery of drum and key to court — Oath administered to clerk or deputy. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 9) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.090. Separate commissioners and drums in courts of continuous session having divisions or held in two places. [Repealed.]

Compiler’s Notes.

This section (2241: amend. Acts 1944, ch. 23, § 5) was repealed by Acts 1954, ch. 7, § 28.

29.095. Separate commissioners and drums in courts of continuous session having divisions or held in two places. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 10) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.100. Reconvening commissioners to supply additional names. [Repealed.]

Compiler’s Notes.

This section (2242) was repealed by Acts 1954, ch. 7, § 28.

29.105. Reconvening commissioners to supply additional names. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 11) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.110. Custody of drum and key. [Repealed.]

Compiler’s Notes.

This section (2245) was repealed by Acts 1954, ch. 7, § 28.

29.115. Custody of drum and key. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 12) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.120. Drums, keys and cases — Who to select — County to pay for. [Repealed.]

Compiler’s Notes.

This section (2245) was repealed by Acts 1954, ch. 7, § 28.

29.125. Drums, keys and cases, selection of and payment for. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 13) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.130. When judge to draw jury lists from drum — Number drawn — Procedure — Panels to be selected from lists. [Repealed.]

Compiler’s Notes.

This section (2243: amend. Acts 1942, ch. 85, §§ 1, 2; 1944, ch. 23, § 6; 1948, ch. 3) was repealed by Acts 1954, ch. 7, § 28.

29.135. Drawing of jury list from drum — Number drawn — Procedure — Selection of grand and petit jurors. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 14; 1966, ch. 182, § 1; 1968, ch. 152, § 17) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.140. Delivery of lists and drum to clerk — Oath — Disclosure of names forbidden in certain counties. [Repealed.]

Compiler’s Notes.

This section (2243: amend. Acts 1942, ch. 85, §§ 1, 2; 1944, ch. 23, § 8) was repealed by Acts 1954, ch. 7, § 28.

29.145. Delivery of lists and drum to clerk. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 15) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.150. Drawing lists when judge absent; special judge may draw. [Repealed.]

Compiler’s Notes.

This section (2243: amend. Acts 1942, ch. 85, §§ 1, 2) was repealed by Acts 1954, ch. 7, § 28.

29.155. Drawing lists when judge absent — Special judge may draw. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 16) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS ch. 29A.

29.160. Summoning jury for special term — New drawing for next regular term. [Repealed.]

Compiler’s Notes.

This section (971-13, 2244) was repealed by Acts 1954, ch. 7, § 28.

29.165. Summoning jury for special term — New drawing for regular term. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 17) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.170. Summoning jurors. [Repealed.]

Compiler’s Notes.

This section (1300, 2246: amend. Acts 1944, ch. 23, § 8) was repealed by Acts 1954, ch. 7, § 28.

29.175. Summoning jurors. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 18; 1958, ch. 9) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.180. Oath to sheriff and deputies. [Repealed.]

Compiler’s Notes.

This section (2262) was repealed by Acts 1954, ch. 7, § 28.

29.185. Oath to sheriff and deputies. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 19; 1974, ch. 386, § 8) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.190. Adjournment of juries. [Repealed.]

Compiler’s Notes.

This section (2277) was repealed by Acts 1954, ch. 7, § 28.

29.195. Adjournment of juries. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 20) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.200. When grand juries to be summoned. [Repealed.]

Compiler’s Notes.

This section (971-13, 2249) was repealed by Acts 1954, ch. 7, § 28.

29.205. When grand juries to be summoned. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 21) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.210. Supplying deficiency in grand jury list; bystanders. [Repealed.]

Compiler’s Notes.

This section (2247) was repealed by Acts 1954, ch. 7, § 28.

29.215. Replacement of grand juror who is ill or excused. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 22) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.220. Foreman of grand jury — Oath to jurors. [Repealed.]

Compiler’s Notes.

This section (2250) was repealed by Acts 1954, ch. 7, § 28.

29.225. Foreman of grand jury — Oath or affirmation of witnesses. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 23; 1962, ch. 234, § 8) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.230. Charge to grand jury. [Repealed.]

Compiler’s Notes.

This section (686b-34, 201c-11, 1565c-5, 1591, 1954d-72, 1966, 2554c-33, 2578, 2633, 2739q-64a: amend. Acts 1946, ch. 63) was repealed by Acts 1954, ch. 7, § 28.

29.235. Charge to grand jury. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 24) was repealed by Acts 1962, ch. 234, § 61.

29.240. Sessions of grand jury limited — Extension of sessions — Special sessions. [Repealed.]

Compiler’s Notes.

This section (2251) was repealed by Acts 1954, ch. 7, § 28.

29.245. Sessions of grand jury — Extension of sessions. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 25) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.250. Calling panel of petit jury — Names to be drawn from box. [Repealed.]

Compiler’s Notes.

This section (2264, 2265) was repealed by Acts 1954, Ch. 7, § 28.

29.255. Calling panel of petit jury — Names to be drawn from box. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 26) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.260. Selection of jury to try felony case. [Repealed.]

Compiler’s Notes.

This section (2266) was repealed by Acts 1962, ch. 234, § 61.

29.262. Summoning jurors from adjoining county — Selection. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 234, § 9) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.265. Officer not to converse with sworn jury. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 7, § 27) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.268. Jury may view place where offense committed. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 234, § 10) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.270. Selection of jury to try civil case. [Repealed.]

Compiler’s Notes.

This section (2267) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.280. Supplying deficiency in petit jury — Bystanders. [Repealed.]

Compiler’s Notes.

This section (2247: amend. Acts 1962, ch. 234, § 61) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.290. Number of peremptory challenges in civil cases. [Repealed.]

Compiler’s Notes.

This section (2258) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.300. Oath to petit jury in civil cases. [Repealed.]

Compiler’s Notes.

This section (2259) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.301. Jury may view property or place. [Repealed.]

Compiler’s Notes.

This section (C.C. 318: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.302. Admonition to jury upon separation. [Repealed.]

Compiler’s Notes.

This section (C.C. 320: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.303. Duty of jury and officer after submission — Separation. [Repealed.]

Compiler’s Notes.

This section (C.C. 319: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.304. Manner of giving information on law or evidence after submission. [Repealed.]

Compiler’s Notes.

This section (C.C. 321: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.305. Causes for discharge of jury. [Repealed.]

Compiler’s Notes.

This section (C.C. 322: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.306. Retrial of cases where jury discharged. [Repealed.]

Compiler’s Notes.

This section (C.C. 323: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.310. Officer not to converse with sworn jury. [Repealed.]

Compiler’s Notes.

This section (2257) was repealed by Acts 1954, ch. 7, § 28.

29.320. Juror to disclose material facts known to him. [Repealed.]

Compiler’s Notes.

This section (2225) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.325. Manner of rendering verdict, poll of jury. [Repealed.]

Compiler’s Notes.

This section (C.C. 324: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.330. Three-fourths verdict in circuit court. [Repealed.]

Compiler’s Notes.

This section (2268) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.335. Written verdict required — Foreman to sign — Clerk to read. [Repealed.]

Compiler’s Notes.

This section (C.C. 325: trans. Acts 1952, ch. 84, § 1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.340. Five-sixths or three-fourths verdict in inferior courts. [Repealed.]

Compiler’s Notes.

This section (2268-1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.350. Corrupt verdict forbidden. [Repealed.]

Compiler’s Notes.

This section (2256: Acts 1974, ch. 406, § 302) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.360. First panel of jury may be discharged after one week. [Repealed.]

Compiler’s Notes.

This section (2261) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.370. Jurors to attend and remain at court during sessions. [Repealed.]

Compiler’s Notes.

This section (2263, 2269) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.380. Person not to solicit jury service. [Repealed.]

Compiler’s Notes.

This section (Acts 1880, ch. 1282) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.390. Pay of jurors. [Repealed.]

Compiler’s Notes.

This section (2251, 2260, 2276, 2279-1: amend. Acts 1944, ch. 47; 1950, ch. 123, §§ 20, 29; 1952, ch. 117; 1952, ch. 190; 1964, ch. 147, § 3; 1970, ch. 176, § 1; 1970, ch. 274, § 1; 1972, ch. 357, § 2; 1974, ch. 165, § 1; 1974, ch. 308, § 24) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.400. Jury claims good for state taxes. [Repealed.]

Compiler’s Notes.

This section (2279-1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.410. Jury fee — Who to pay — When taxed as costs. [Repealed.]

Compiler’s Notes.

This section (2260, 2271, 2273) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.420. One jury fee in consolidated cases. [Repealed.]

Compiler’s Notes.

This section (2271-1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.430. Pauper not liable for jury fee. [Repealed.]

Compiler’s Notes.

This section (2272) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.440. Clerk to issue execution for jury fees. [Repealed.]

Compiler’s Notes.

This section (2274, 4244) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

29.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (1300, 2241, 2256, 2263, 2269, 2270, 4248: amend. Acts 1962, ch. 210, § 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978. For present law, see KRS Ch. 29A.

CHAPTER 29A Juries

29A.010. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Court” means a Circuit or District Court of this Commonwealth and includes any judge of these courts.
  2. “Name” includes an identifying number.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 12, effective September 1, 1977; 2002, ch. 252, § 1, effective July 15, 2002.

Compiler’s Notes.

Section 79(2) of Acts 1976 (Ex. Sess.), ch. 22 provided that

“Sections 12, 13, 14, 15, 16, 17, 18, 19, and 20 [KRS 29A.010 to 29A.090 ] of this Act shall become effective September 1, 1977. Until January 2, 1978 these sections shall be held and construed as ancillary and supplemental to KRS Chapter 29; however, jurors called for service hereunder may not serve until after January 2, 1978.”

NOTES TO DECISIONS

Cited:

Spanski v. Commonwealth, 610 S.W.2d 290, 1980 Ky. LEXIS 277 ( Ky. 1980 ); Baker v. Commonwealth, 677 S.W.2d 316, 1984 Ky. App. LEXIS 565 (Ky. Ct. App. 1984).

Opinions of Attorney General.

In view of the definition of “court” in subsection (1) of this section, prior jury service under KRS 29A.080(2) refers to jury service in a state court only. OAG 85-78 .

Research References and Practice Aids

Cross-References.

Jury Selection and Management, KRS 29A.280 to 29A.320 .

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 13.

Kentucky Law Journal.

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

29A.020. Procedural rules.

The Supreme Court may make and amend such procedural rules as may be necessary to implement the provisions of this chapter.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 13, effective September 1, 1977.

Compiler’s Notes.

Section 79(2) of Acts 1976 (Ex. Sess.), ch. 22 provided that

“Sections 12, 13, 14, 15, 16, 17, 18, 19, and 20 [KRS 29A.010 to 29A.090 ] of this Act shall become effective September 1, 1977. Until January 2, 1978 these sections shall be held and construed as ancillary and supplemental to KRS Chapter 29; however, jurors called for service hereunder may not serve until after January 2, 1978.”

29A.030. Jury commissioners — Qualifications — Compensation — Term — Duties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976 (Ex. Sess.), ch. 22, § 14, effective September 1, 1977; 1984, ch. 111, § 170, effective July 13, 1984) was repealed by Acts 2002, ch. 252, § 12, effective July 15, 2002.

29A.040. Master list of prospective jurors for county — Annual update.

  1. A list of all persons over the age of eighteen (18) and holding personal identification cards under KRS 186.4122 or valid driver’s licenses which were issued in the county, of the names and addresses of all persons filing Kentucky resident individual income tax returns which show an address in the county, and of all persons registered to vote in the county shall constitute a master list of prospective jurors for a county.
  2. The Administrative Office of the Courts shall at least annually acquire an electronic copy of the list of personal identification cards issued under KRS 186.4122 and the driver’s license list from the Transportation Cabinet, an electronic copy of the tax roll described in subsection (1) of this section from the Department of Revenue, and an electronic copy of the voter registration lists from the State Board of Elections. In addition, the Administrative Office of the Courts shall at least annually acquire a listing of deceased persons from the Vital Statistics Branch in the Department of Public Health. The Transportation Cabinet, the Department of Revenue, the State Board of Elections, and the Vital Statistics Branch and those public officers or employees having custody, possession, or control of any of the lists required under this section shall annually furnish a copy of the list to the Administrative Office of the Courts without charge.
  3. The Administrative Office of the Courts shall merge the lists required by subsections (1) and (2) of this section in a manner designed to create an accurate listing of all persons eligible for jury service. The Administrative Office of the Courts may purge names from the master list upon reasonable evidence of death, change of state residence, change of county residence, or any other reason causing a person to be ineligible for jury service as found in KRS 29A.080 .
  4. Any person who comes into possession of the Kentucky income tax names and addresses as provided in this section shall be bound by the confidentiality provisions of KRS 131.190 .

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 15, effective September 1, 1977; 1982, ch. 449, § 6, effective October 1, 1982; 1990, ch. 250, § 1, effective July 13, 1990; 2002, ch. 252, § 2, effective July 15, 2002; 2005, ch. 85, § 44, effective June 20, 2005; 2020 ch. 18, § 1, effective July 15, 2020.

Compiler’s Notes.

Section 79(2) of Acts 1976 (Ex. Sess.), ch. 22 provided that

“Sections 12, 13, 14, 15, 16, 17, 18, 19, and 20 [KRS 29A.010 to 29A.090 ] of this Act shall become effective September 1, 1977. Until January 2, 1978 these sections shall be held and construed as ancillary and supplemental to KRS Chapter 29; however, jurors called for service hereunder may not serve until after January 2, 1978.”

NOTES TO DECISIONS

1.Constitutionality.

This section is constitutional, representing an effective manner by which to insure representative jury panels from segments of the community, even though many otherwise eligible jurors are excluded because they do not register to vote. Ford v. Commonwealth, 665 S.W.2d 304, 1983 Ky. LEXIS 315 ( Ky. 1983 ), cert. denied, 469 U.S. 984, 105 S. Ct. 392, 83 L. Ed. 2d 325, 1984 U.S. LEXIS 4318 (U.S. 1984).

2.Underrepresentation of Groups.

Where there was not one shred of evidence which indicated any irregularity or underrepresentation of certain groups in the jury panel, the trial court did not abuse its discretion in denying the defendant funds to secure the services of experts to attempt to prove such underrepresentation. McQueen v. Commonwealth, 669 S.W.2d 519, 1984 Ky. LEXIS 210 (Ky.), cert. denied, 469 U.S. 893, 105 S. Ct. 269, 83 L. Ed. 2d 205, 1984 U.S. LEXIS 380 (U.S. 1984).

Kentucky does not recognize young adults as an identifiable group, exclusion of which would be prohibited; thus, the fact that young adults were underrepresented on the jury panel did not deny the defendant his right to a jury representing a fair cross section of the community. McQueen v. Commonwealth, 669 S.W.2d 519, 1984 Ky. LEXIS 210 ( Ky. 1984 ), cert. denied, McQueen v. Kentucky, 469 U.S. 893, 105 S. Ct. 269, 83 L. Ed. 2d 205, 1984 U.S. LEXIS 380 (1984) .

3.Interpretation of KRS 29A.060.

Former subsection (8) of KRS 29A.060 should be interpreted so that any juror drawn on or after July 13, 1990 shall be from the drivers’ license list or voter registration list, but that jurors previously notified may serve during the interim. Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446, 1994 Ky. LEXIS 6 ( Ky. 1994 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

4.Tax Records.

To have been eligible for jury service, the name of persons selected by the jury commissioners must have been on the last returned assessor’s book. (Decided under prior law)Williams v. Commonwealth, 254 Ky. 277 , 71 S.W.2d 626, 1934 Ky. LEXIS 73 ( Ky. 1934 ).

Where commissioners in filling jury drum did not take names from tax list as prescribed, but placed names of persons whom they wished to favor thereon, motion to quash indictment and petit jury should have been sustained. (Decided under prior law)Bain v. Commonwealth, 283 Ky. 18 , 140 S.W.2d 612, 1940 Ky. LEXIS 276 ( Ky. 1940 ).

The failure of the jury commissioners to select jurors from last returned assessor’s book and to draw jurors’ names from the drum as directed by statute was not ground for vacating judgment after term, since assessment roll and jury list were public records so that failure could have been discovered before trial by exercise of reasonable diligence. (Decided under prior law)Richardson v. Louisville & N. R. Co., 291 Ky. 357 , 164 S.W.2d 602, 1942 Ky. LEXIS 237 ( Ky. 1942 ).

Indictment was invalid where seven members of the grand jury, whose names were drawn from the jury wheel, were not listed on the county tax commissioner’s records. (Decided under prior law)Fugate v. Commonwealth, 313 Ky. 845 , 233 S.W.2d 1019, 1950 Ky. LEXIS 1001 ( Ky. 1950 ).

Cited:

Dean v. Commonwealth, 844 S.W.2d 417, 1992 Ky. LEXIS 185 ( Ky. 1992 ), cert. denied, Dean v. Kentucky, 512 U.S. 1234, 114 S. Ct. 2737, 129 L. Ed. 2d 858, 1994 U.S. LEXIS 4897, 62 U.S.L.W. 3860 (1994).

Research References and Practice Aids

ALR

Exclusion from grand jury list of eligible class or classes of persons, effect of, and remedies of. 52 A.L.R. 919.

Exclusion of eligible class of persons from jury list in civil case as ground for motion to quash venire. 166 A.L.R. 1422.

Validity of enactment requiring juror to be an elector or voter or have qualifications thereof. 78 A.L.R.3d 1147.

Validity of requirement or practice of selecting prospective jurors exclusively from list of registered voters. 80 A.L.R.3d 869.

Age group underrepresentation in grand jury or petit jury venire, 62 A.L.R.4th 859.

Voir Dire Exclusions of Men from State Trial Jury or Jury Panel -- Post-J.E.B. v. Alabama ex rel T.B, 511 U.S. 127, Cases, 88 A.L.R.5th 67.

Validity and application of computerized jury selection practice or procedure, 110 A.L.R.5th 329.

29A.050. Selection of names of prospective jurors by jury commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976 (Ex. Sess.), ch. 22, § 16, effective September 1, 1977) was repealed by Acts 2002, ch. 252, § 12, effective July 15, 2002.

29A.060. Assignment of jurors by Chief Circuit Judge — Service of summons — Selection of additional jurors — Summonsing jurors from adjoining counties.

  1. Each Circuit or District Judge shall inform the Chief Circuit Judge or the Chief Circuit Judge’s designee of the need for qualified jurors.
  2. The Chief Circuit Judge or designee shall regulate the random assignment of jurors for use in Circuit and District Courts. Any petit juror assigned to a judge of Circuit or District Court may be used by any other judge of any other branch or division of Circuit or District Court when jurors are needed.
  3. If a grand, petit, or other jury is ordered to be drawn, the Chief Circuit Judge or designee thereafter shall cause each person drawn for jury service to be served with a summons requiring that person to report for jury service at a specified time and place, unless otherwise notified by the court, and to be available for jury service for thirty (30) judicial days thereafter. The service of summons shall be made by the court utilizing first class mail, addressed to each person at his or her usual residence, business, or post office address. In the event service cannot be accomplished by first class mail, the court may cause service to be made personally by the sheriff. In either case, notice shall be mailed or served to the prospective juror at least thirty (30) days before he or she is required to attend.
  4. The juror qualification form required by KRS 29A.070 shall be enclosed with the summons. If the summons is served by mail, any prospective juror who does not return the juror qualification form within ten (10) days may be personally served by the sheriff at the discretion of the Chief Circuit Judge or Chief Circuit Judge’s designee.
  5. When there is an unanticipated shortage of available jurors obtained from a randomized jury list, the Chief Circuit Judge may cause to be summonsed a sufficient number of jurors selected sequentially from the randomized jury list beginning with the first name following the last name previously selected. The persons so chosen shall be summonsed as provided in this section, but need not be given the notice provided in subsection (3) of this section.
  6. Only persons duly qualified and summonsed under subsection (3) of this section and KRS 29A.070 shall serve as jurors.
  7. If, after making a fair effort in good faith, the judge is satisfied that it will be impracticable to obtain a jury free of bias in the county in which the prosecution is pending, the judge may obtain a sufficient number of jurors from some adjoining county in which the judge believes there is the greatest probability of obtaining impartial jurors. The judge shall request the Chief Circuit Judge for the adjoining county to draw and summon as many jurors as are needed. Jurors summonsed under this subsection need not be given the notice provided in subsection (3) of this section.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 17, effective September 1, 1977; 1980, ch. 114, § 4, effective July 15, 1980; 1982, ch. 449, § 7, effective October 1, 1982; 2002, ch. 252, § 3, effective July 15, 2002.

Compiler’s Notes.

Section 79(2) of Acts 1976 (Ex. Sess.), ch. 22 provided that

“Sections 12, 13, 14, 15, 16, 17, 18, 19, and 20 [KRS 29A.010 to 29A.090 ] of this Act shall become effective September 1, 1977. Until January 2, 1978 these sections shall be held and construed as ancillary and supplemental to KRS Chapter 29; however, jurors called for service hereunder may not serve until after January 2, 1978.”

NOTES TO DECISIONS

1.Construction.

Former subsection (8) of this section should be interpreted so that any juror drawn on or after July 13, 1990 shall be from the drivers’ license list or voter registration list, but that jurors previously notified may serve during the interim. Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446, 1994 Ky. LEXIS 6 ( Ky. 1994 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

2.Purpose.

The purpose of former law providing for the selection of jury panels was to prevent the drum from being filled with names of friends and relatives of the jury commissioners. (Decided under prior law)Williams v. Commonwealth, 254 Ky. 277 , 71 S.W.2d 626, 1934 Ky. LEXIS 73 ( Ky. 1934 ).

3.Scope of Rules of Procedure.

The latest revision of the rules of procedure appears to have resulted in jury selection rules which differ from the statute; however, to the extent there is a conflict, it must be resolved by following the rules rather than the statute, since the power to fix the method of jury selection is inherently one for the courts and not the legislature. Trent v. Commonwealth, 606 S.W.2d 386, 1980 Ky. App. LEXIS 369 (Ky. Ct. App. 1980).

4.Method of Summoning.

One may not have complained of the method of summoning the jury when there was no issue to go to the jury. (Decided under prior law)Gahren, Dodge & Maltby v. Parkersburg Nat'l Bank, 157 Ky. 266 , 162 S.W. 1135, 1914 Ky. LEXIS 273 ( Ky. 1914 ).

A juror whose name appeared in the sheriff’s return, but had not been drawn from the drum, should not have been allowed to serve. (Decided under prior law)Miller v. Commonwealth, 240 Ky. 346 , 42 S.W.2d 518, 1931 Ky. LEXIS 411 ( Ky. 1931 ).

The fact that a deputy sheriff who assisted in summoning the jurors for a criminal case was prejudiced against and hostile to the defendant would not constitute grounds for discharging the jury at the conclusion of the commonwealth’s evidence, where the fact was known to the defendant before the jury was sworn and he could have made objection at that time. (Decided under prior law)Pennington v. Commonwealth, 294 Ky. 266 , 171 S.W.2d 432, 1943 Ky. LEXIS 429 ( Ky. 1943 ).

5.Obtaining Jury From Another County.

Jurors may be obtained from another county in criminal cases, but the method of selecting such jurors was determined by the common law and not by statute providing for selection. The sheriff may secure previous jury lists from the circuit clerk of the other county. (Decided under prior law)Deaton v. Commonwealth, 157 Ky. 308 , 163 S.W. 204, 1914 Ky. LEXIS 287 ( Ky. 1914 ).

It did not constitute an honest, fair effort to obtain a jury locally merely to draw on the court’s personal knowledge of the situation and on evidence heard on a motion for a change of venue; there should have been at least some attempt or test by examination of prospective jurors. (Decided under prior law)Fannon v. Commonwealth, 295 Ky. 817 , 175 S.W.2d 531, 1943 Ky. LEXIS 351 ( Ky. 1943 ).

In prosecution for voluntary manslaughter it was an abuse of the court’s discretion to inquire into defendant’s allegation with respect to manner in which venire was summoned from adjoining county. (Decided under prior law)Vincent v. Commonwealth, 295 S.W.2d 555, 1956 Ky. LEXIS 164 ( Ky. 1956 ).

6.Method of Service.

Where all of the prospective jurors in a prosecution for receiving stolen property received summonses by first-class mail notifying them of the need for their services as jurors, and all showed up at the proper place and at the proper time, the defendant failed to show how he was prejudiced by the state’s failure to serve the summonses by certified or registered mail as required in former subsection (8) of this section. Reed v. Commonwealth, 641 S.W.2d 748, 1982 Ky. LEXIS 313 ( Ky. 1982 ). (Decision prior to the 1982 amendment of this section).

7.Cross Section of Community.

The defendant was not denied his constitutional right to a fair trial on the basis that the jury was not selected from a representative cross section of the community, where several prospective jurors were excused for medical, employment, or other hardship reasons, but the court did not excuse all those who expressed a desire to be excused. Stanford v. Commonwealth, 734 S.W.2d 781, 1987 Ky. LEXIS 208 ( Ky. 1987 ), aff'd, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306, 1989 U.S. LEXIS 3195 (U.S. 1989).

The trial court did not violate the defendant’s right to a jury comprised of a fair cross section of the community by interviewing veniremen on the second day in alphabetical order, where the defendant did not identify any “distinctive” characteristic possessed by those whose surnames begin with the letters I-Z, and moreover, had the defendant proven or articulated such characteristics, there was no error as more than half of the jurors who actually heard the case had surnames beginning with these letters. Stanford v. Commonwealth, 734 S.W.2d 781, 1987 Ky. LEXIS 208 ( Ky. 1987 ), aff'd, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306, 1989 U.S. LEXIS 3195 (U.S. 1989).

8.Random Selection.

The number of prospective jurors called by the court (38), and the decision made by the court to randomly select 28 out of that number for the jury selection process was proper, where all 38 potential jurors initially selected at random remained in the courtroom, available at all times during voir dire to randomly replace stricken jurors. Williams v. Commonwealth, 734 S.W.2d 810, 1987 Ky. App. LEXIS 513 (Ky. Ct. App. 1987).

Randomness means that at no time in the jury selection process will anyone involved in the action be able to know in advance, or manipulate, the list of names who will eventually compose the empaneled jury. Williams v. Commonwealth, 734 S.W.2d 810, 1987 Ky. App. LEXIS 513 (Ky. Ct. App. 1987).

9.Compliance.

Litigants had the right to demand that jurors be selected according to the statutes, and in passing on this right the qualifications of jurors or the fact that they may be acceptable to the parties was not to be considered. (Decided under prior law)Louisville, H. & S. L. R. Co. v. Schwab, 127 Ky. 82 , 105 S.W. 110, 31 Ky. L. Rptr. 1313 , 1907 Ky. LEXIS 119 ( Ky. 1907 ); Kitchen v. Commonwealth, 275 Ky. 564 , 122 S.W.2d 121, 1938 Ky. LEXIS 463 ( Ky. 1938 ).

The provisions and requirements of law providing for selection of jury panel were not merely directory but were of mandatory force in prescribing the one legal manner to be followed by the jury commission in its selection of grand and petit jurors, and must have been substantially complied with, even though noncompliance may have been waived by a party through failure to make proper objections at the proper time. (Decided under prior law)Williams v. Commonwealth, 254 Ky. 277 , 71 S.W.2d 626, 1934 Ky. LEXIS 73 ( Ky. 1934 ). See May v. Commonwealth, 294 Ky. 308 , 171 S.W.2d 465, 1943 Ky. LEXIS 441 ( Ky. 1943 ); Parker v. Commonwealth, 298 Ky. 204 , 182 S.W.2d 653, 1944 Ky. LEXIS 873 ( Ky. 1944 ); Rodgers v. Commonwealth, 314 Ky. 496 , 236 S.W.2d 270, 1951 Ky. LEXIS 681 ( Ky. 1951 ).

The judge had a duty to see to it that the commissioners followed the requirements of law providing for selection of jury panel. (Decided under prior law)Williams v. Commonwealth, 254 Ky. 277 , 71 S.W.2d 626, 1934 Ky. LEXIS 73 ( Ky. 1934 ).

Substantial compliance with statutes respecting selection of names to be placed in jury wheel was imperative, although mere minor irregularities and informalities of procedure by jury commissioners should not have been ground for discharging panel. (Decided under prior law)South v. Commonwealth, 287 Ky. 99 , 152 S.W.2d 295, 1941 Ky. LEXIS 508 ( Ky. 1941 ). See Wilson v. Commonwealth, 287 Ky. 286 , 152 S.W.2d 952, 1941 Ky. LEXIS 533 ( Ky. 1941 ).

In the selection of a jury there must be substantial compliance with the procedural steps outlined in the statute, and the right and power to disregard any one of these statutory provisions does not lie within the privilege of the judge of the court. (Decided under prior law)Price v. Commonwealth, 366 S.W.2d 725, 1962 Ky. LEXIS 3 ( Ky. 1962 ).

Where, in drawing for additional possible jurors, only eight of the persons called appeared and nine names were put in the box but the absent person’s name was not drawn, there was no error in the selection of a jury. (Decided under prior law)Helton v. Commonwealth, 476 S.W.2d 621, 1971 Ky. LEXIS 62 ( Ky. 1971 ).

It is in the interest of justice that the statutes and rules for jury selection be closely followed, and that no substantial deviation be allowed, regardless of prejudice; the matter of jury selection is too important a part of the judicial system to permit variations, from one court to another, in compliance with controlling statutes. Allen v. Commonwealth, 596 S.W.2d 21, 1979 Ky. App. LEXIS 519 (Ky. Ct. App. 1979).

No substantial deviation from the method of jury selection provided by the rules and statutes is permitted, and where such a deviation has occurred, regardless of a showing of prejudice, if the error is properly preserved, a reversal is required. Bartley v. Loyall, 648 S.W.2d 873, 1982 Ky. App. LEXIS 289 (Ky. Ct. App. 1982).

Because the procedure employed by the trial court in summoning prospective jurors complied with the relevant law, and the trial court’s failure to have those jurors who failed to respond to the summons personally served by the sheriff was not a substantial deviation from proper administrative procedure, no reversible error was found. Moreover, defendant failed to show that she was prejudiced by the procedure followed, a sufficient number of jurors existed, and the randomness of the jury pool was unaffected. Monroe v. Commonwealth, 244 S.W.3d 69, 2008 Ky. LEXIS 10 ( Ky. 2008 ).

Circuit Court did not err in applying KRS 29A.060(4) when serving summons to jurors because under KRS 29A.060(4), the Circuit Court is left with the discretion to utilize the personal summons as it deems necessary; because the statute grants broader discretion to the Circuit Court than AP Part II, § 6, it does not hamper or unreasonably interfere with the administration of justice. Fugett v. Commonwealth, 250 S.W.3d 604, 2008 Ky. LEXIS 111 ( Ky. 2008 ).

10.— Presumption of Regularity.

Jury commissioners, being officers of the court, were presumed to have done their duty, but this presumption may be overcome by evidence that they did not. (Decided under prior law)Louisville, H. & S. L. R. Co. v. Schwab, 127 Ky. 82 , 105 S.W. 110, 31 Ky. L. Rptr. 1313 , 1907 Ky. LEXIS 119 ( Ky. 1907 ).

A grand jury was presumed to have been lawfully impaneled. (Decided under prior law)Young v. Commonwealth, 275 Ky. 98 , 120 S.W.2d 772, 1938 Ky. LEXIS 372 ( Ky. 1938 ).

Mere failure of the record to indicate that every necessary step to impanel a grand jury had been taken would not overcome that presumption. (Decided under prior law)Young v. Commonwealth, 275 Ky. 98 , 120 S.W.2d 772, 1938 Ky. LEXIS 372 ( Ky. 1938 ).

Regularity in proceedings of grand jury in an indictment was to be presumed. (Decided under prior law)Tarrence v. Commonwealth, 265 S.W.2d 40, 1953 Ky. LEXIS 1267 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706, 1954 U.S. LEXIS 1429 (U.S. 1954).

11.— Failure.

Where the error is preserved and there is a substantial deviation in the jury selection from the rule and the statute a reversal is required. Robertson v. Commonwealth, 597 S.W.2d 864, 1980 Ky. LEXIS 211 ( Ky. 1980 ).

Although the trial court’s procedures deviated somewhat from those prescribed by rule and statute, under the circumstances of this case it was impossible for the defendant to demonstrate any prejudice, and the irregularity in the procedure was harmless beyond all doubt. Sanders v. Commonwealth, 801 S.W.2d 665, 1990 Ky. LEXIS 93 ( Ky. 1990 ), cert. denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76, 1991 U.S. LEXIS 4767 (U.S. 1991).

A jury commissioner may not have been compelled to testify as to his own disregard of law providing for the selection of a jury panel. (Decided under prior law)Louisville, H. & S. L. R. Co. v. Schwab, 127 Ky. 82 , 105 S.W. 110, 31 Ky. L. Rptr. 1313 , 1907 Ky. LEXIS 119 ( Ky. 1907 ).

Where the statute for the selection of jurors is substantially violated, and the question is properly raised, the question whether a litigant has been actually prejudiced is immaterial. (Decided under prior law)Martin v. Stumbo Elkhorn Coal Co., 216 Ky. 147 , 287 S.W. 539, 1926 Ky. LEXIS 860 ( Ky. 1926 ).

Where one jury commissioner alone selected a major portion of the names to be placed in the jury wheel in the absence of the other two commissioners there was a substantial violation of the method provided for selection of jurors and it was not necessary that such violation result in prejudicial error for a motion to discharge the panel to be sustained. (Decided under prior law)South v. Commonwealth, 287 Ky. 99 , 152 S.W.2d 295, 1941 Ky. LEXIS 508 ( Ky. 1941 ). See Wilson v. Commonwealth, 287 Ky. 286 , 152 S.W.2d 952, 1941 Ky. LEXIS 533 ( Ky. 1941 ).

Where the commissioners selected jurymen in a manner substantially different from that provided by statute, judgment of conviction must be reversed. (Decided under prior law)Noble v. Commonwealth, 288 Ky. 232 , 155 S.W.2d 866, 1941 Ky. LEXIS 83 ( Ky. 1941 ). See Noble v. Commonwealth, 288 Ky. 477 , 156 S.W.2d 463, 1941 Ky. LEXIS 118 ( Ky. 1941 ).

Where under a statute the duty of selecting names of grand jurors and placing the names in the drum must be a concerted performance by the three commissioners this duty could not be delegated to one of the commissioners and delegation to one of the commissioners was a substantial violation of, rather than a compliance with, the statute. (Decided under prior law)Rodgers v. Commonwealth, 314 Ky. 496 , 236 S.W.2d 270, 1951 Ky. LEXIS 681 ( Ky. 1951 ).

12.— —Setting Aside Indictment.

A motion to set aside an indictment for error in organization of the grand jury must have been made at the time of arraignment, or it was waived. (Decided under prior law)Taylor v. Commonwealth, 90 S.W. 581, 28 Ky. L. Rptr. 819 (1906); Sloan v. Commonwealth, 211 Ky. 318 , 277 S.W. 488, 1925 Ky. LEXIS 873 ( Ky. 1925 ).

Failure to comply substantially with requirements of statutes relating to formation of grand jury would not constitute grounds for setting aside indictments found by grand jury, in the absence of proof that rights of accused were actually prejudiced thereby, unless the failure was such as to indicate on its face the potentialities of danger to the rights of the accused. (Decided under prior law)May v. Commonwealth, 294 Ky. 308 , 171 S.W.2d 465, 1943 Ky. LEXIS 441 ( Ky. 1943 ).

The fact that the commissioners placed in the drum more names than provided by law providing for selection of jury panel was not grounds for setting aside indictment found by grand jury. (Decided under prior law)May v. Commonwealth, 294 Ky. 308 , 171 S.W.2d 465, 1943 Ky. LEXIS 441 ( Ky. 1943 ).

Every person was entitled to the right of having the grand jury which indicted him selected according to the law, and where that right was not recognized, it was the duty of the trial court to quash the indictment unless the right was waived. (Decided under prior law)Fugate v. Commonwealth, 313 Ky. 845 , 233 S.W.2d 1019, 1950 Ky. LEXIS 1001 ( Ky. 1950 ).

Where there was a complete failure to observe any of the procedural steps designated in the applicable statutes in respect to the summoning of the grand jury, the resulting indictment must be set aside and held for naught. (Decided under prior law)Gill v. Commonwealth, 374 S.W.2d 848, 1964 Ky. LEXIS 392 ( Ky. 1964 ).

13.— Merger of Panels.

It is not improper to merge a new venire with an existing panel. Copley v. Commonwealth, 854 S.W.2d 748, 1993 Ky. LEXIS 65 ( Ky. 1993 ).

14.Objections.

One objecting that the names of grand jurors were not drawn from the drum or not announced publicly in accordance with law should have based his affidavit on more than information and belief. (Decided under prior law)Williams v. Commonwealth, 254 Ky. 277 , 71 S.W.2d 626, 1934 Ky. LEXIS 73 ( Ky. 1934 ).

Objection for noncompliance with law providing for selection of names for jury service was waived if not made in proper form at the proper time. (Decided under prior law)Bain v. Commonwealth, 283 Ky. 18 , 140 S.W.2d 612, 1940 Ky. LEXIS 276 ( Ky. 1940 ).

15.— Time for Making.

Challenges to the panel must have preceded poll challenges. (Decided under prior law)Eichman's Committee v. South Covington & C. S. R. Co., 126 Ky. 519 , 104 S.W. 316, 31 Ky. L. Rptr. 880 , 1907 Ky. LEXIS 65 ( Ky. 1907 ).

Objections to the panel should have been made before trial. (Decided under prior law)Continental Coal Corp. v. Cole's Adm'r, 155 Ky. 139 , 159 S.W. 668, 1913 Ky. LEXIS 205 ( Ky. 1913 ).

An objection that the commissioners wrote down names from memory, and so got names that were not on assessor’s book, must have been made before the jury was accepted. (Decided under prior law)Galliaer v. Southern Harlan Coal Co., 247 Ky. 752 , 57 S.W.2d 645, 1932 Ky. LEXIS 884 ( Ky. 1932 ).

Objections to the mode of forming the grand jury were waived by failure to present the objections to the trial court in the motion and grounds for a new trial. (Decided under prior law)Hopkins v. Commonwealth, 279 Ky. 370 , 130 S.W.2d 764, 1939 Ky. LEXIS 274 ( Ky. 1939 ).

Motion to quash indictment because grand jury was not drawn from the drum in the manner provided by statute was too late when not made until start of second trial, following trial at which there was a hung jury. Such a motion must be made at time of arraignment or when indictment is first called for trial. (Decided under prior law)Robinson v. Commonwealth, 285 Ky. 838 , 149 S.W.2d 502, 1940 Ky. LEXIS 612 ( Ky. 1940 ).

Objection based on manner in which jury was selected must have been made before trial. (Decided under prior law)Richardson v. Louisville & N. R. Co., 291 Ky. 357 , 164 S.W.2d 602, 1942 Ky. LEXIS 237 ( Ky. 1942 ).

Where the attorney for defendant had examined the tax assessor’s book prior to examination of the jury and knew the names of some of the jurors did not appear on it even though these jurors answered the question “Did each of you list some property for taxation in Whitley County” affirmatively, a new trial would not be granted on ground of disqualification of jurors since a challenge to a juror must have been made before trial and the acceptance of the jury precluded the defendant from thereafter presenting a challenge for cause. (Decided under prior law)Croley v. Owens, 296 Ky. 51 , 176 S.W.2d 84, 1943 Ky. LEXIS 93 ( Ky. 1943 ).

Where upon his arraignment appellant properly and timely moved that the indictment be set aside and quashed he never waived any error there was in the challenged formation of the grand jury which indicted him. Parker v. Commonwealth, 298 Ky. 204 , 182 S.W.2d 653, 1944 Ky. LEXIS 873 ( Ky. 1944 ).

Where no objection was raised at the time of trial that two of the men on the grand jury who rendered an indictment for murder against appellant were not listed on the last returned county tax commissioner’s record, it was waived and could not be raised for the first time in a motion for a new trial. (Decided under prior law)Hensley v. Commonwealth, 280 S.W.2d 540, 1955 Ky. LEXIS 184 ( Ky. 1955 ).

16.— Waiver of Objections.

By not objecting to the manner in which the jury was impanelled was made and by accepting the jury without exhausting his peremptory challenges, the defendant was satisfied with the make-up of the jury as impanelled. Moore v. Commonwealth, 597 S.W.2d 155, 1979 Ky. App. LEXIS 527 (Ky. Ct. App. 1979).

A challenge to the qualifications of jurors because of a substantial deviation in the method of their selection is not waived by failing to raise the challenge before the jury is selected if the complaining party neither knew, nor by the exercise of reasonable diligence could have known, of the grounds for challenge before the jury was accepted to try the case; accordingly, where the evidence clearly showed that the complaining party had no cause to suspect jury selection irregularity until after the trial, and the irregularity constituted reversible error, the error was properly preserved although raised for the first time in a motion for new trial. Bartley v. Loyall, 648 S.W.2d 873, 1982 Ky. App. LEXIS 289 (Ky. Ct. App. 1982).

17.Discrimination.

The fact that one-sixth of the people in a county are Negro did not mean that the jury commissioners, in order to observe in good faith the constitutional rights of Negro citizens, must place the names of Negroes in the wheel in the proportion of one to six since the percentage of Negro housekeepers to white housekeepers would need to be established, the factor of concentrations of Negro populations in particular sections of the county would have to have been weighed in the light of the requirement that the names be selected from different portions of the county and the respective proportion of names on the tax list would be important. (Decided under prior law)Gilchrist v. Commonwealth, 246 S.W.2d 435, 1951 Ky. LEXIS 1273 ( Ky. 1951 ).

The fact that for 50 years there was a practice of arbitrary and absolute exclusion of a race or color cannot be availed of, if in the year of indictment that practice was abandoned and the grand jury by which defendant was indicted and the petit jury by which she was tried were selected with a good faith disregard of race or color. (Decided under prior law)Gilchrist v. Commonwealth, 246 S.W.2d 435, 1951 Ky. LEXIS 1273 ( Ky. 1951 ).

The mere fact that only one of 96 persons, whose names were drawn from the wheel filled by jury commissioners, was a Negro, was not sufficient to show that the commissioners were practicing evasion. (Decided under prior law)Gilchrist v. Commonwealth, 246 S.W.2d 435, 1951 Ky. LEXIS 1273 ( Ky. 1951 ).

A disproportionate percentage among the first jury panel drawn from the wheel would not conclusively establish that such percentage of Negro to white prevailed as to all names in the wheel since the drawing depends on chance. (Decided under prior law)Gilchrist v. Commonwealth, 246 S.W.2d 435, 1951 Ky. LEXIS 1273 ( Ky. 1951 ).

Appellant, a Negro, was not discriminated against because no more members of his race were made available to him where three Negroes were called as jurors at the term of court at which he was convicted of murder, two of which actually performed jury duty though none served on the jury that convicted him. (Decided under prior law)Martin v. Kentucky, 221 F. Supp. 112, 1963 U.S. Dist. LEXIS 9770 (W.D. Ky. 1963 ), aff'd, 331 F.2d 603, 1964 U.S. App. LEXIS 5294 (6th Cir. Ky. 1964 ).

Although the conclusionary accusation was made that the jury selection process resulted in systematic exclusion of black persons, young persons, and persons from lower socioeconomic classes, no presumption arose that the methods of jury selection were impermissible, absent factual allegations on which a hearing could be based. (Decided under prior law)Blakemore v. Commonwealth, 497 S.W.2d 231, 1973 Ky. LEXIS 307 ( Ky. 1973 ).

Research References and Practice Aids

ALR

Selecting or summoning of jurors, misconduct of officers in as contempt of court. 7 A.L.R. 345.

Irregularity in drawing names for a jury panel as ground of complaint by defendant in criminal prosecution. 92 A.L.R. 1109.

Power of court to exclude from panel or venire for particular case all persons belonging to a class membership in which bias or prejudice may supposedly be involved. 105 A.L.R. 1527.

Consulting preferences of persons eligible for jury service as regards periods of times of service or character of actions, validity and effect of plan of practice. 112 A.L.R. 995.

Proof as to exclusion of or discrimination against eligible class or race in respect to jury in criminal case. 1 A.L.R.2d 1291.

Exclusion of women as violation of constitutional rights of accused or as ground for reversal of conviction. 9 A.L.R.2d 661.

New trial on ground of confusion of name or identity in drawing, summoning, calling, impaneling, or examining juror in civil case. 89 A.L.R.2d 1242.

29A.070. Juror qualification forms.

  1. The Chief Circuit Judge shall cause to be mailed or delivered with the summons to each juror a juror qualification form accompanied by instructions to fill out and return the form by mail or hand delivery to the clerk within five (5) days after its receipt, or to be completed as otherwise directed. The juror qualification form shall be provided by the Administrative Office of the Courts and subject to approval by the Chief Justice of the Supreme Court.
  2. The juror qualification form shall contain the prospective juror’s signed declaration that his responses are true to the best of his knowledge and his acknowledgment that a willful misrepresentation of a material fact may be punished by a fine or by imprisonment, or both. Notarization of the juror qualification form shall not be required.
  3. If the prospective juror is unable to fill out the form, another person may do it for him and shall indicate that he has done so and the reason therefor.
  4. Any prospective juror who fails to return a properly completed juror qualification form as instructed may be directed by the Chief Circuit Judge to appear forthwith to fill out a juror qualification form. At the time of his appearance for jury service, any prospective juror may be questioned by the judge or his designee, but only with regard to his responses to questions contained on the form and grounds for his excuse or disqualification. Any information thus acquired shall be noted on the juror qualification form.
  5. A prospective juror who fails to appear as directed by the judge pursuant to subsection (4) of this section shall be ordered to appear and show cause for his failure to appear as directed. If the prospective juror fails to appear pursuant to the judge’s order or fails to show good cause for his failure to appear as directed by the judge, he may be punished for contempt.
  6. No person shall willfully misrepresent a material fact on a juror qualification form.
  7. The contents of juror qualification forms shall be made available to parties or their attorneys of record unless the court determines in any instance in the interest of justice that this information shall be kept confidential or its use limited in whole or in part.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 18, effective September 1, 1977.

Compiler’s Notes.

Section 79(2) of Acts 1976 (Ex. Sess.), ch. 22 provided that

“Sections 12, 13, 14, 15, 16, 17, 18, 19, and 20 [KRS 29A.010 to 29A.090 ] of this Act shall become effective September 1, 1977. Until January 2, 1978 these sections shall be held and construed as ancillary and supplemental to KRS Chapter 29; however, jurors called for service hereunder may not serve until after January 2, 1978.”

NOTES TO DECISIONS

1.Access to Juror Qualification Forms.

Since subsection (7) of this section vests jurisdiction in the trial judge to refuse access to juror qualification forms under certain circumstances, it was not an abuse of discretion for the trial judge to refuse to allow the forms to be used for further review. Smith v. Commonwealth, 734 S.W.2d 437, 1987 Ky. LEXIS 200 ( Ky. 1987 ), cert. denied, 484 U.S. 1036, 108 S. Ct. 762, 98 L. Ed. 2d 778, 1988 U.S. LEXIS 425 (U.S. 1988).

There is no conflict between subsection (7) of this section and Ad. Proc. Part II § 7(7); the statute vests the discretion in the “court” and the rule clarifies that the “court” is the chief circuit judge or designee. Samples v. Commonwealth, 983 S.W.2d 151, 1998 Ky. LEXIS 117 ( Ky. 1998 ), modified, 1998 Ky. LEXIS 153 (Ky. Dec. 17, 1998), overruled in part, Lawson v. Commonwealth, 53 S.W.3d 534, 2001 Ky. LEXIS 87 ( Ky. 2001 ).

Cited:

Ward v. Commonwealth, 695 S.W.2d 404, 1985 Ky. LEXIS 307 ( Ky. 1985 ); Perdue v. Commonwealth, 916 S.W.2d 148, 1995 Ky. LEXIS 109 ( Ky. 1995 ).

Opinions of Attorney General.

Neither this section nor KRS 29A.210 requires the court to place the summonses in the hands of the sheriff for actual delivery to jurors, although it may do so if it so desires; the court may require the court clerk to mail the summonses. OAG 83-100 .

Research References and Practice Aids

Kentucky Law Journal.

Fortune, Voir Dire in Kentucky: An Empirical Study of Voir Dire in Kentucky Circuit Courts, 69 Ky. L.J. 273 (1980-81).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Administrative Office of the Courts — Forms, § 7.00.

29A.080. Disqualifications for jury service — Permanent exemption.

  1. The Chief Circuit Judge or one (1) or more judges of the court, the court’s clerk, a deputy clerk, the court’s administrator, or a deputy court administrator so designated by the Chief Circuit Judge shall determine on the basis of the information provided on the juror qualification form whether the prospective juror is disqualified for jury service for any of the reasons listed in subsection (2) of this section. This determination shall be entered in the space provided on the juror qualification form. The Chief Circuit Judge shall cause each disqualified juror to be immediately notified of the juror’s disqualification.
  2. A prospective juror is disqualified to serve on a jury if the juror:
    1. Is under eighteen (18) years of age;
    2. Is not a citizen of the United States;
    3. Is not a resident of the county;
    4. Has insufficient knowledge of the English language;
    5. Has been previously convicted of a felony and has not been pardoned or received a restoration of civil rights by the Governor or other authorized person of the jurisdiction in which the person was convicted;
    6. Is presently under indictment; or
    7. Has served on a jury within the time limitations set out under KRS 29A.130 .
  3. The Chief Circuit Judge may grant a permanent exemption based upon an individual’s request and a finding by the Chief Circuit Judge of a permanent medical condition rendering the individual incapable of serving. The judge granting the permanent exemption shall notify the requesting person and the Administrative Office of the Courts. Upon receiving notification of a permanent exemption the Administrative Office of the Courts shall remove the person’s name from the master list.
  4. There shall be no waiver of these disqualifications, except that pursuant to the Federal Americans With Disabilities Act of 1990, an individual with a disability shall not be disqualified solely by reason of the disability. For the purposes of this section, “individual with a disability” means a person with a physical or mental impairment that substantially limits one (1) or more of the major life activities of the individual, a record of the impairment, or being regarded as having the impairment.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 19, effective September 1, 1977; 1982, ch. 449, § 8, effective October 1, 1982; 1994, ch. 416, § 1, effective July 15, 1994; 2002, ch. 252, § 4, effective July 15, 2002.

Compiler’s Notes.

Section 79(2) of Acts 1976 (Ex. Sess.), ch. 22 provided that

“Sections 12, 13, 14, 15, 16, 17, 18, 19, and 20 [KRS 29A.010 to 29A.090 ] of this Act shall become effective September 1, 1977. Until January 2, 1978 these sections shall be held and construed as ancillary and supplemental to KRS Chapter 29; however, jurors called for service hereunder may not serve until after January 2, 1978.”

The Federal Americans With Disabilities Act of 1990 referred to in subsection (4) of this section is compiled as 42 USCS §§ 12101 et seq.

NOTES TO DECISIONS

1.Purpose.

The import of this section and KRS 29A.090 is that no qualified individual is to be automatically exempted from jury service. Reid v. Commonwealth, 659 S.W.2d 217, 1983 Ky. App. LEXIS 393 (Ky. Ct. App. 1983).

2.Time for Challenge.

Any challenge to the qualification of a juror must be made before the jury is empaneled since to permit challenges after the verdict is rendered invites a situation in which attorneys may suspect a problem but wait until a case is lost before objecting; therefore, the trial court did not err in denying a motion for new trial which defendant insurance company made on grounds that one of the jurors was a convicted felon who had not been pardoned. Ohio Casualty Ins. Co. v. Cisneros, 657 S.W.2d 244, 1983 Ky. App. LEXIS 360 (Ky. Ct. App. 1983).

Bartley v. Loyall, 648 S.W.2d 873, 1982 Ky. App. LEXIS 289 (Ky. Ct. App. 1982), stands for the proposition that a challenge to a jury panel is not waived by failing to raise the challenge before the jury is selected if the complaining party neither knew nor by the exercise of reasonable diligence could have known of the grounds for challenge before the jury was accepted to try the case. Warren v. Commonwealth, 903 S.W.2d 907, 1994 Ky. App. LEXIS 105 (Ky. Ct. App. 1994).

3.Waiver.

Subsection (3) (now (4)) of this section is directed to the judge in his activities in drawing up the jury list, and simply provides that he cannot waive any of the disqualifications in order to allow a prospective juror to serve. Ohio Casualty Ins. Co. v. Cisneros, 657 S.W.2d 244, 1983 Ky. App. LEXIS 360 (Ky. Ct. App. 1983).

Defendant charged with intentional murder waived any juror selection issue under RCr P. 9.34 by not timely objecting. As a result, defendant could not obtain relief from defendant’s conviction on that charge on defendant’s claim that the trial court erroneously discharged a prospective juror pursuant to KRS 29A.080(2)(e) because the prospective juror had a felony conviction. McQueen v. Commonwealth, 339 S.W.3d 441, 2011 Ky. LEXIS 75 ( Ky. 2011 ).

4.New Trial.

Although the juror qualification forms contained a question whether they had served within the last 12 months, to which one juror admitted, and the other falsely denied their prior service, the plaintiffs were not entitled to a new trial due to the disqualification of the two jurors under subsection (2) of this section, because the plaintiffs failed to show in what way they were prejudiced, in that ten jurors found for the defendant, and the verdict would have apparently been the same. Pinkston v. Griffith, 730 S.W.2d 948, 1987 Ky. App. LEXIS 498 (Ky. Ct. App. 1987).

Generally, any challenge to a juror’s qualification must be made before the jury is empaneled; however, where upon voir dire examination, the jurors remain silent when inquired whether any member has previously served, and it is discovered after trial that a juror should have been disqualified, a new trial is warranted, provided that the movant exercised reasonable diligence upon voir dire to discover the claimed disqualification. Pinkston v. Griffith, 730 S.W.2d 948, 1987 Ky. App. LEXIS 498 (Ky. Ct. App. 1987).

Because the order improperly delegating the chief judge’s authority to disqualify, postpone and excuse jurors, had expired, but apparently was still being followed at time of defendant’s trial where he was convicted of second-degree burglary, there was no published order in effect at the time the jury was impanelled and neither defendant or his counsel could have known of the grounds for the challenge until after the jury was impanelled; therefore defendant did not waive his right to challenge the composition of the jury panel and the trial court erred in not granting his motion for a new trial based on an improperly selected petit jury. Warren v. Commonwealth, 903 S.W.2d 907, 1994 Ky. App. LEXIS 105 (Ky. Ct. App. 1994).

5.Recording of Reasons for Disqualification.

The trial court erred in the jury selection procedures where the judge excused a number of prospective jurors without recording a reason for the excuses on the jury qualification form, even though the trial court later gave reasons as to why these jurors were excused. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

6.Authority to Disqualify.

Decisions concerning disqualifications of, requests for postponement of, and excuse from jury service must be made by the Chief Circuit Judge or another judge. The delegation of this authority to administrative personnel constituted a substantial deviation from the law and rules and the chief judge’s subsequent concurrence with the decisions of the jury pool administrators did not cure the defect. Commonwealth v. Nelson, 841 S.W.2d 628, 1992 Ky. LEXIS 172 ( Ky. 1992 ).

Circuit Court committed reversible error in overruling defendant’s motion to dismiss the indictment against him where the Chief Judge of the Circuit Court improperly delegated to her administrative personnel the authority to excuse prospective jurors. The improper delegation tainted the selection process and thus rendered void the proceeding against defendant. Harris v. Commonwealth, 878 S.W.2d 801, 1994 Ky. App. LEXIS 68 (Ky. Ct. App. 1994).

Because the authority to determine which jurors should be disqualified, postponed or excused cannot be delegated to administrative personnel, where county court administrator was able to excuse or transfer jurors based on their responses to a questionnaire and such error was properly preserved, such error necessitated granting defendant’s motion to dismiss and reversing defendant’s conviction for first degree criminal abuse. Allen v. Commonwealth, 901 S.W.2d 881, 1995 Ky. App. LEXIS 67 (Ky. Ct. App. 1995).

Trial court properly found that the juror was disqualified from serving on a criminal jury under the pre-2002 version of KRS 29A.080 as a convicted felon, despite the fact that the Governor had restored the juror’s right to vote and to hold public office; the Governor expressly restored the juror’s rights under Ky. Const., §§ 145, 150, both of which dealt with restoration of the right to vote and to hold office, and the Governor had the power under Ky. Const., § 77 to issue the partial pardon excluding the right to serve on a jury. Anderson v. Commonwealth, 107 S.W.3d 193, 2003 Ky. LEXIS 139 ( Ky. 2003 ).

7.Grand Jury.

An attorney was not a civil officer and hence was able to serve on the grand jury. (Decided under prior law) Shaw v. United States, 180 F. 348, 1910 U.S. App. LEXIS 4764 (6th Cir. Ky. 1910 ).

The presence of an attorney on the grand jury did not make the indictment quashable. (Decided under prior law) Shaw v. United States, 180 F. 348, 1910 U.S. App. LEXIS 4764 (6th Cir. Ky. 1910 ).

The presence of a coroner on the grand jury did not make the indictment quashable. (Decided under prior law) Ford v. Commonwealth, 223 Ky. 677 , 4 S.W.2d 683, 1928 Ky. LEXIS 411 ( Ky. 1928 ).

8.— Race.

The Fourteenth Amendment to the United States Constitution does not require that a grand jury be composed at least partly of negroes before a negro can be indicted, but it did require that such persons not be excluded because of their race. (Decided under prior law) Smith v. Commonwealth, 33 S.W. 825, 17 Ky. L. Rptr. 1162 (1896). See Bush v. Kentucky, 107 U.S. 110, 1 S. Ct. 625, 27 L. Ed. 354, 1882 U.S. LEXIS 1207 (U.S. 1883).

The Fourteenth Amendment to the United States Constitution did not require that a grand jury be composed at least partly of negroes before a negro can be indicted nor does it require that a white person be indicted by a grand jury composed at least partly of whites. (Decided under prior law) Miller v. Commonwealth, 127 Ky. 387 , 105 S.W. 899, 32 Ky. L. Rptr. 249 , 1907 Ky. LEXIS 146 ( Ky. 1907 ); Owens v. Commonwealth, 188 Ky. 498 , 188 Ky. 698 , 222 S.W. 524, 1920 Ky. LEXIS 308 ( Ky. 1920 ).

9.— Citizen.

One who was not a citizen or housekeeper of the county was not a qualified grand juror. (Decided under prior law) Lee v. Commonwealth, 210 Ky. 410 , 276 S.W. 127, 1925 Ky. LEXIS 691 ( Ky. 1925 ).

10.Petit jury.

The fact that a juror was not a housekeeper is not grounds for setting aside the verdict. (Decided under prior law) Dayton v. Lory, 169 Ky. 94 , 183 S.W. 252, 1916 Ky. LEXIS 649 ( Ky. 1916 ). See Winchester v. Commonwealth, 210 Ky. 685 , 276 S.W. 575, 1925 Ky. LEXIS 753 ( Ky. 1925 ).

It was proper to grant new trial where jurors, when asked on the voir dire if they had been involved in an automobile accident, remained silent, though it was later learned they had been so involved. (Decided under prior law) Drury v. Franke, 247 Ky. 758 , 57 S.W.2d 969, 1933 Ky. LEXIS 453 ( Ky. 1933 ).

Where defendant complained on appeal that juror on third trial was son of juror on second trial, and did not disclose the fact, Court of Appeals could not consider objection in absence of transcript of questions and answers on voir dire. (Decided under prior law) Louisville & N. R. Co. v. Gregory, 289 Ky. 211 , 158 S.W.2d 1, 1941 Ky. LEXIS 22 ( Ky. 1941 ).

Where evidence supported verdict for the plaintiff, although it was error for the trial court to deny a continuance on ground that plaintiff had been serving on the jury panel regularly and continuously since the beginning of the term, ten days before, the error was not prejudicial and judgment was affirmed. (Decided under prior law) Stanley v. Brown, 303 Ky. 481 , 198 S.W.2d 35, 1946 Ky. LEXIS 871 ( Ky. 1946 ).

11.— Age.

The fact that one of the jurors was less than 21 years of age was not grounds for setting aside the verdict. (Decided under prior law) Combs v. Commonwealth, 97 Ky. 24 , 29 S.W. 734, 16 Ky. L. Rptr. 699 , 1895 Ky. LEXIS 138 (Ky. Ct. App. 1895); Winchester v. Commonwealth, 210 Ky. 685 , 276 S.W. 575, 1925 Ky. LEXIS 753 ( Ky. 1925 ).

12.— Bias of Juror.

Subsection (2)(g) of this section, which disqualifies a prospective juror if he has served on a jury within the last 12 months, relates to the jurors’ ability to be on the jury panel, and to hold otherwise would mean that a juror could only serve on one case per term which obviously is not the intent of the legislation. Spanski v. Commonwealth, 610 S.W.2d 290, 1980 Ky. LEXIS 277 ( Ky. 1980 ).

Where member of jury panel, but not of trial jury, made affidavit that member of trial jury had said, before trial, that accused “had a bad case,” and juror, in affidavit, denied making such a statement, trial court was justified in overruling motion for new trial, since proof of bias of juror must be clear and convincing, and where proof is conflicting trial judge has broad discretion. (Decided under prior law) Mullins v. Commonwealth, 285 Ky. 804 , 149 S.W.2d 725, 1941 Ky. LEXIS 478 ( Ky. 1941 ).

Where kinship of juror is remote and he was unaware of his relationship to the deceased when he served on the jury a reversal of the conviction is unwarranted on the ground of implied bias of the juror since it is the knowledge of the kinship and the feeling that arises from it that works the disqualification. (Decided under prior law) Horton v. Commonwealth, 240 S.W.2d 612, 1951 Ky. LEXIS 996 ( Ky. 1951 ).

Where juror, during course of rape trial, realized he was victim’s third cousin, informed the court, responded to court questions that he could be fair and impartial and that relationship would not affect his judgment, and both counsel appeared to have acquiesced in court’s action, it was not reversible error to allow juror to remain on jury. George v. Commonwealth, 885 S.W.2d 938, 1994 Ky. LEXIS 116 ( Ky. 1994 ).

Court properly overruled appellants’ motion to strike for cause prospective jurors who were also holders of the insurer’s policies because appellants did not inquire further into the matter during voir dire either with any individual juror or with the venire, and relevant inquiries could have determined whether a particular juror had a concern that a judgment in the case would affect them personally. Gibson v. Ky. Farm Bureau Mut. Ins. Co., 328 S.W.3d 195, 2010 Ky. App. LEXIS 121 (Ky. Ct. App. 2010).

13.— Blindness.

It was proper to deny a motion to strike for cause a prospective juror with vision impairment not of such magnitude that he could not fulfill his duties as a juror. Foley v. Commonwealth, 953 S.W.2d 924, 1997 Ky. LEXIS 56 ( Ky. 1997 ), modified, 1997 Ky. LEXIS 139 (Ky. Nov. 20, 1997), cert. denied, 523 U.S. 1053, 118 S. Ct. 1375, 140 L. Ed. 2d 522, 1998 U.S. LEXIS 2237 (U.S. 1998).

14.— Convicted of Felony.

Where there was no evidence that the person mentioned in the clerk’s affidavit, whose name was similar to one of the jurors and who had been convicted of a felony and had not been pardoned, was the same person who served as juror, the Court of Appeals was unauthorized to disturb the findings and conclusions of the trial judge concerning that issue. (Decided under prior law) Howell v. Commonwealth, 489 S.W.2d 21, 1972 Ky. LEXIS 22 ( Ky. 1972 ).

15.— Deafness.

Defendant failed to present any evidence of prejudice by the participation of a deaf juror, and the denial of defendant’s motion to strike the juror for cause was not error. Woodard v. Commonwealth, 147 S.W.3d 63, 2004 Ky. LEXIS 244 ( Ky. 2004 ).

Deafness of juror would furnish sufficient grounds for challenge for cause, and if not discovered upon duly diligent voir dire examination might furnish grounds for setting aside the verdict. (Decided under prior law) Higgins v. Commonwealth, 287 Ky. 767 , 155 S.W.2d 209, 1941 Ky. LEXIS 637 ( Ky. 1941 ), overruled, Woodard v. Commonwealth, 147 S.W.3d 63, 2004 Ky. LEXIS 244 ( Ky. 2004 ).

16.— Grounds for New Trial.

There was no ground for a new trial where one juror served upon both the first trial and the trial which followed reversal. (Decided under prior law) McKee v. Cincinnati, F. & S. E. R. Co., 161 Ky. 711 , 171 S.W. 425, 1914 Ky. LEXIS 150 ( Ky. 1914 ).

17.— Knowledge of Results of Former Trial.

Fact that juror knows result of former trial does not of itself disqualify him for before a new trial will be granted it must appear from competent evidence that such fact operated on juror’s mind in such a way as to influence him and the mere fact that juror read newspaper account of former trial was not a disqualification. (Decided under prior law) Louisville & N. R. Co. v. Gregory, 289 Ky. 211 , 158 S.W.2d 1, 1941 Ky. LEXIS 22 ( Ky. 1941 ).

18.—Marriage.

The relationship by marriage of a juror and a potential witness does not, in itself, disqualify the juror for cause. (Decided under prior law) Moore v. Commonwealth, 556 S.W.2d 161, 1977 Ky. App. LEXIS 809 (Ky. Ct. App. 1977).

19.— Prior Service.

Subsection (2)(g) of this section, which disqualifies a prospective juror if he has served on a jury within the last 12 months, relates to the jurors’ ability to be on the jury panel, and to hold otherwise would mean that a juror could only serve on one case per term which obviously is not the intent of the legislation. Spanski v. Commonwealth, 610 S.W.2d 290, 1980 Ky. LEXIS 277 ( Ky. 1980 ).

The court committed no error in allowing a juror to serve who had served within the prior six months, if the party failed to take advantage of the disqualification. (Decided under prior law) Miracle v. Commonwealth, 148 Ky. 453 , 146 S.W. 1136, 1912 Ky. LEXIS 477 ( Ky. 1912 ).

The fact that a juror had served on a jury within 12 months was not reversible error. (Decided under prior law) Netter's Adm'r v. Louisville R. Co., 134 Ky. 678 , 121 S.W. 636, 1909 Ky. LEXIS 430 ( Ky. 1909 ); McKee v. Cincinnati, F. & S. E. R. Co., 161 Ky. 711 , 171 S.W. 425, 1914 Ky. LEXIS 150 ( Ky. 1914 ).

If a trial judge refused to sustain a challenge made on the ground that the person challenged had served on a regular panel within 12 months, such erroneous ruling was not a ground for setting the verdict aside. (Decided under prior law) Netter's Adm'r v. Louisville R. Co., 134 Ky. 678 , 121 S.W. 636, 1909 Ky. LEXIS 430 ( Ky. 1909 ); McKee v. Cincinnati, F. & S. E. R. Co., 161 Ky. 711 , 171 S.W. 425, 1914 Ky. LEXIS 150 ( Ky. 1914 ).

Prior service of a grand juror did not make the indictment quashable. (Decided under prior law) Burnett v. Commonwealth, 172 Ky. 397 , 189 S.W. 460, 1916 Ky. LEXIS 228 ( Ky. 1916 ).

The purpose of law prohibiting service by juror who had served within past 12 months was to eliminate professional jurors who might have become partial to certain attorneys, or knew too much about a particular case. (Decided under prior law) Cross v. Commonwealth, 270 Ky. 537 , 109 S.W.2d 1214, 1937 Ky. LEXIS 104 ( Ky. 1937 ).

Service as a juror on a regular panel within 12 months prior to voir dire examination was cause for challenge. (Decided under prior law) Nuchols v. Commonwealth, 312 Ky. 171 , 226 S.W.2d 796, 1950 Ky. LEXIS 612 ( Ky. 1950 ), overruled in part, Commonwealth, Dep't of Highways v. Ginsburg, 516 S.W.2d 868, 1974 Ky. LEXIS 182 ( Ky. 1974 ).

Where upon voir dire examination when the jury was asked if any of the members had served as a juror on the regular panel within 12 months last past all members remained silent and after the trial it was discovered that one juror had served within 12 months, this was ground for a new trial even though no objection was taken at the time of trial since it would deny appellant of the highly important right of properly and intelligently exercising his challenges. (Decided under prior law) Nuchols v. Commonwealth, 312 Ky. 171 , 226 S.W.2d 796, 1950 Ky. LEXIS 612 ( Ky. 1950 ), overruled in part, Commonwealth, Dep't of Highways v. Ginsburg, 516 S.W.2d 868, 1974 Ky. LEXIS 182 ( Ky. 1974 ).

20.— Race.

Complaint that negroes were excluded from trial jury could not be considered when not made in the motion and grounds for a new trial. (Decided under prior law) Burnam v. Commonwealth, 289 Ky. 312 , 158 S.W.2d 131, 1941 Ky. LEXIS 26 ( Ky. 1941 ).

21.— Service in Another County.

A juror who had served on a Circuit Court jury in the county of his residence within 12 months was not thereby disqualified to sit on a jury in another county. (Decided under prior law) Cross v. Commonwealth, 270 Ky. 537 , 109 S.W.2d 1214, 1937 Ky. LEXIS 104 ( Ky. 1937 ).

22.— Taxpayer.

A juror need not be a taxpayer. (Decided under prior law) Covington v. Lovelace, 243 Ky. 627 , 49 S.W.2d 593, 1932 Ky. LEXIS 181 ( Ky. 1932 ).

23.— Under Indictment.

The phrase “under indictment” is not limited to felony indictments. (Decided under prior law) Pennington v. Commonwealth, 455 S.W.2d 530, 1970 Ky. LEXIS 249 ( Ky. 1970 ).

Where two indictments had been “continued generally,” they were still valid and had not been effectually dismissed. (Decided under prior law) Pennington v. Commonwealth, 455 S.W.2d 530, 1970 Ky. LEXIS 249 ( Ky. 1970 ).

Cited:

Smith v. Commonwealth, 734 S.W.2d 437, 1987 Ky. LEXIS 200 ( Ky. 1987 ), cert. denied, Smith v. Kentucky, 484 U.S. 1036, 108 S. Ct. 762, 98 L. Ed. 2d 778, 1988 U.S. LEXIS 425 (1988); Woodall v. Commonwealth, 63 S.W.3d 104, 2001 Ky. LEXIS 142 ( Ky. 2001 ), cert. denied, Woodall v. Kentucky, 537 U.S. 835, 123 S. Ct. 145, 154 L. Ed. 2d 54, 2002 U.S. LEXIS 6199, 71 U.S.L.W. 3236 (2002).

Opinions of Attorney General.

In view of the definition of “court” in KRS 29A.010(1), prior jury service under subdivision (2) of this section refers to jury service in a state court only. OAG 85-78 .

Research References and Practice Aids

Northern Kentucky Law Review.

2008 Criminal Law Issue: Note: Kentucky’s Statutory Collateral Consequences Arising From Felony Convictions: A Practitioner’s Guide, 35 N. Ky. L. Rev. 413 (2008).

Treatises

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Administrative Office of the Courts — Forms, § 7.00.

Collateral References.

ALR

Intoxicating liquors, service on jury in prosecution for selling, as disqualification as juror in similar case. 3 A.L.R. 1206.

Unfamiliarity with English as affecting competency of juror. 34 A.L.R. 194.

Intelligence, character, religious or loyalty tests of qualification of juror. 126 A.L.R. 507.

Criminal charge or conviction as disqualifying juror. 126 A.L.R. 518.

Removal by executive of disqualification resulting from conviction of crime as applicable in case of conviction in federal court or court of another state. 135 A.L.R. 1493.

Governing law as to existence or character of offense for which one has been convicted in a federal court or court of another state, as bearing upon disqualification to sit on jury. 175 A.L.R. 805.

Waiver of disqualification. 54 A.L.R.2d 1204; 72 A.L.R.2d 908; 81 A.L.R.2d 714; 38 A.L.R.4th 323.

Previous knowledge of facts of civil case by juror as disqualification. 73 A.L.R.2d 1312.

Disqualification, as jurors, of residents or taxpayers of litigating political subdivision, in absence of specific controlling statute. 81 A.L.R.2d 708.

Relationship of juror to witness in civil case as ground of disqualification. 85 A.L.R.2d 851.

Juror’s presence at or participation in trial of criminal case (or related hearing) as ground of disqualification in subsequent criminal case involving same defendant. 6 A.L.R.3d 519.

Prior service on grand jury which considered indictment against accused as disqualification for service on petit jury. 24 A.L.R.3d 1236.

Deafness of juror as ground for impeaching verdict, or securing new trial or reversal on appeal. 38 A.L.R.4th 1170.

Professional or business relations between proposed juror and attorney as ground for challenge for cause, 52 A.L.R.4th 964.

Jury: visual impairment as disqualification, 48 A.L.R.4th 1154.

Fact that juror in criminal case, or juror’s relative or friend, has previously been victim of criminal incident as ground of disqualification, 65 A.L.R.4th 743.

Threats of violence against juror in criminal trial as ground for mistrial or dismissal of juror, 3 A.L.R.5th 963.

Taking and use of trial notes by jury, 36 A.L.R.5th 255.

Inattention of juror from sleepiness or other cause as ground for reversal or new trial, 59 A.L.R.5th 1.

29A.090. Automatic exemptions prohibited.

There shall be no automatic exemptions from jury service.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 20, effective September 1, 1977.

Compiler’s Notes.

Section 79(2) of Acts 1976 (Ex. Sess.), ch. 22 provided that

“Sections 12, 13, 14, 15, 16, 17, 18, 19, and 20 [KRS 29A.010 to 29A.090 ] of this Act shall become effective September 1, 1977. Until January 2, 1978 these sections shall be held and construed as ancillary and supplemental to KRS Chapter 29; however, jurors called for service hereunder may not serve until after January 2, 1978.”

NOTES TO DECISIONS

1.Purpose.

The import of KRS 29A.080 and this section is that no qualified individual is to be automatically exempted from jury service. Reid v. Commonwealth, 659 S.W.2d 217, 1983 Ky. App. LEXIS 393 (Ky. Ct. App. 1983).

2.Reversal of Conviction.

Where the evidence was overwhelming that medical doctors, attorneys, and policemen were automatically excluded from consideration by the jury commission in violation of this section, the defendant’s conviction had to be reversed since automatic exclusion of these groups constituted a substantial deviation from the statutory method of jury selection. Reid v. Commonwealth, 659 S.W.2d 217, 1983 Ky. App. LEXIS 393 (Ky. Ct. App. 1983).

3.Systematic Exclusion.

In order to establish a prima facie case of systematic exclusion, it must be proven, by evidence and not just an affidavit, that distinctive groups, comprising a substantial percentage of the county population, have been excluded from jury service; ordinarily, professions or occupations are not distinctive groups in a community, absent a showing of numerosity and lack of community needs to establish a prima facie case of systematic exclusion. Commonwealth v. McFerron, 680 S.W.2d 924, 1984 Ky. LEXIS 274 ( Ky. 1984 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Administrative Office of the Courts — Forms, § 7.00.

29A.100. Postponement of service or excusing of juror — Breastfeeding mothers to be excused.

  1. Upon the request of a prospective juror prior to assignment to a trial court, the Chief Circuit Judge, or after the juror’s assignment to a trial court, the trial judge may excuse such juror upon a showing of undue hardship, extreme inconvenience, or public necessity. On the day on which the prospective jurors are summonsed to appear, any person not previously excused who desires to be excused shall be heard.
  2. The Chief Circuit Judge may designate and authorize one (1) or more judges of the court, the court’s clerk, a deputy clerk, the court’s administrator, or a deputy court administrator to excuse a juror from service for a period not to exceed ten (10) days or to postpone jury service for a period not to exceed twelve (12) months. The reasons for excuse or postponement shall be entered in the space provided on the juror qualification form.
  3. In his or her discretion the judge may excuse a juror from service entirely, reduce the number of days of service, or may postpone the juror’s service temporarily for a period of time not to exceed, however, twenty-four (24) months. Whenever possible the judge shall favor temporary postponement of service or reduced service over permanent excuse. When excusing a juror, the judge shall record the juror’s name, as provided in KRS 29A.080 , and the reasons for granting the excuse.
  4. The judge shall excuse a mother who is breastfeeding a child or expressing breastmilk from jury service until such time as the child is old enough that the mother is no longer breastfeeding the child.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 21, effective January 2, 1978; 2002, ch. 252, § 5, effective July 15, 2002; 2007, ch. 102, § 1, effective June 26, 2007.

NOTES TO DECISIONS

1.Systematic Exclusion.

In order to establish a prima facie case of systematic exclusion, it must be proven, by evidence and not just an affidavit, that distinctive groups, comprising a substantial percentage of the county population, have been excluded from jury service; ordinarily, professions or occupations are not distinctive groups in a community, absent a showing of numerosity and lack of community needs to establish a prima facie case of systematic exclusion. Commonwealth v. McFerron, 680 S.W.2d 924, 1984 Ky. LEXIS 274 ( Ky. 1984 ).

In a murder case, when the trial court excused mothers with sole childcare responsibilities and workers whose employers would not pay them for missed days, but did not excuse white-collar workers with busy jobs, this was not an impermissible systematic exclusion of a class of jurors. Bratcher v. Commonwealth, 151 S.W.3d 332, 2004 Ky. LEXIS 332 ( Ky. 2004 ).

2.Recording of Reasons for Excuse.

The trial court erred in the jury selection procedures where the judge excused a number of prospective jurors without recording a reason for the excuses on the jury qualification form, even though the trial court later gave reasons as to why these jurors were excused. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

3.Authority to Excuse.

Decisions concerning disqualifications of, requests for postponement of, and excuse from jury service must be made by the Chief Circuit Judge or another judge. The delegation of this authority to administrative personnel constituted a substantial deviation from the law and rules and the Chief judge’s subsequent concurrence with the decisions of the jury pool administrators did not cure the defect. Commonwealth v. Nelson, 841 S.W.2d 628, 1992 Ky. LEXIS 172 ( Ky. 1992 ).

Circuit Court committed reversible error in overruling defendant’s motion to dismiss the indictment against him where the Chief Judge of the Circuit Court improperly delegated to her administrative personnel the authority to excuse prospective jurors. The improper delegation tainted the selection process and thus rendered void the proceeding against defendant. Harris v. Commonwealth, 878 S.W.2d 801, 1994 Ky. App. LEXIS 68 (Ky. Ct. App. 1994).

Because the authority to determine which jurors should be disqualified, postponed or excused cannot be delegated to administrative personnel, where county court administrator was able to excuse or transfer jurors based on their responses to a questionnaire and such error was properly preserved, such error necessitated granting defendant’s motion to dismiss and reversing defendant’s conviction for first degree criminal abuse. Allen v. Commonwealth, 901 S.W.2d 881, 1995 Ky. App. LEXIS 67 (Ky. Ct. App. 1995).

4.Discretion of Court.

The trial judge had a large measure of discretion in exercising his power to examine and to excuse salesman in a criminal case. (Decided under prior law)Tarrence v. Commonwealth, 265 S.W.2d 40, 1953 Ky. LEXIS 1267 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706, 1954 U.S. LEXIS 1429 (U.S. 1954).

In prosecution where defendant was convicted of first degree manslaughter, trial judge did not abuse his discretion in excusing juror who was elementary school principal. Copley v. Commonwealth, 854 S.W.2d 748, 1993 Ky. LEXIS 65 ( Ky. 1993 ).

5.Age.

Court may, on its own motion, have excused a juror over 60 years of age. (Decided under prior law)Webb v. Commonwealth, 223 Ky. 424 , 3 S.W.2d 1080, 1928 Ky. LEXIS 363 ( Ky. 1928 ).

Cited:

Ward v. Commonwealth, 695 S.W.2d 404, 1985 Ky. LEXIS 307 ( Ky. 1985 ); Smith v. Commonwealth, 734 S.W.2d 437, 1987 Ky. LEXIS 200 ( Ky. 1987 ); Grundy v. Commonwealth, 25 S.W.3d 76, 2000 Ky. LEXIS 107 ( Ky. 2000 ).

Research References and Practice Aids

ALR

Criminal case, excusing qualified juror drawn in, as ground of complaint by defendant. 96 A.L.R. 508.

Religious belief as ground for exemption or excuse from jury service. 2 A.L.R.3d 1392.

29A.110. Disclosure of records or papers used in selection process.

The contents of any records or papers used by the Administrative Office of the Courts or the clerk in connection with the selection process and not required to be made public under this chapter shall not be disclosed, except in connection with the preparation or presentation of a motion under the Rules of Civil Procedure or the Rules of Criminal Procedure or upon order of the Chief Justice.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 22, effective January 2, 1978; 2002, ch. 252, § 6, effective July 15, 2002.

NOTES TO DECISIONS

Cited:

Warren v. Commonwealth, 903 S.W.2d 907, 1994 Ky. App. LEXIS 105 (Ky. Ct. App. 1994).

29A.120. Preservation of records and papers compiled in selection process. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976 (Ex. Sess.), ch. 22, § 37, effective January 2, 1978; 1982, ch. 449, § 11, effective October 1, 1982) was repealed by Acts 2002, ch. 252, § 12, effective July 15, 2002.

29A.130. Limitation on jury service within a twenty-four-month period.

  1. Except as set out in this section, in any twenty-four (24) month period, a person shall not be required to:
    1. Serve or attend court for prospective service as a petit juror more than thirty (30) court days except when necessary to complete service in a particular case; or
    2. Serve on more than one (1) grand jury; or
    3. Serve as both a grand and petit juror.
  2. For the purpose of this section, court includes all federal courts, all other state courts, and any court of the Commonwealth.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 24, effective January 2, 1978; 2002, ch. 252, § 7, effective July 15, 2002.

Legislative Research Commission Notes.

(8/24/2005). In 2002 Ky. Acts ch. 252, sec. 7, the following text was erroneously included in this statute: “At any time for cause shown, the court may excuse a grand juror either temporarily or permanently and may swear another grand juror from a current jury panel in place of the one excused. The discharge of any such grand juror shall in no way or manner affect any indictment found by the grand jury as it was composed either before or after such discharge. If it is impossible to fill the vacancy on the grand jury from a current jury panel, the Chief Circuit Judge may summon, using the procedure in KRS 29A.060(5), such number of prospective jurors as deemed necessary for the purpose.”

This text was not part of the statute when the section was created in 1976, and it was never added to the statute in accordance with the requirements of KRS 446.145(1). Instead, the text was inadvertently inserted, without underlining, in the 2002 amendment to this statute (2002 Ky. Acts ch. 252, sec. 7).

Acting under the authority of KRS 446.270 , 446.280 , and 7.136(1)(h), the Reviser of Statutes has deleted this extraneous text.

For a provision similar to the one deleted from this statute, see KRS 29A.260 .

NOTES TO DECISIONS

1.No Bias.

Defendant’s right to an impartial jury was not violated when a juror was accepted on the panel despite having served on a previous six-month jury panel term because such service, even if it exceeded the 30 days permitted, did not serve to make the juror biased. Williamson v. Commonwealth, 601 S.W.3d 469, 2019 Ky. App. LEXIS 74 (Ky. Ct. App. 2019).

29A.140. Discharge of juror.

At the conclusion of his period of service as required by this chapter, each juror shall be discharged.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 25, effective January 2, 1978.

29A.150. Contempt — Failure to perform jury service.

  1. A person summoned for jury service who fails to appear as directed shall be ordered by the court to appear forthwith and show cause for his failure to comply with the summons. If he fails to show good cause for noncompliance with the summons, he may be punished for contempt.
  2. A juror who fails to give attention at court, or who leaves the courthouse while the court is in session, or who otherwise fails to complete jury service, without leave of the court, may be punished for contempt.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 26, effective January 2, 1978.

NOTES TO DECISIONS

Cited:

Grundy v. Commonwealth, 25 S.W.3d 76, 2000 Ky. LEXIS 107 ( Ky. 2000 ).

29A.160. Employer’s duties.

  1. An employer shall not deprive an employee of his employment, or threaten or otherwise coerce him with respect thereto, because the employee receives a summons, responds thereto, serves as a juror, or attends court for prospective jury service.
  2. If an employer discharges an employee in violation of subsection (1) of this section, the employee may within ninety (90) days of such discharge bring a civil action for recovery of wages lost as a result of the violation and for an order requiring the reinstatement of the employee with full seniority and benefits. Damages recoverable shall not exceed lost wages. If he prevails, the employee shall be allowed a reasonable attorney’s fee fixed by the court.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 27(1)(3).

29A.170. Compensation of jurors.

  1. All jurors in Circuit and District Court shall be paid five dollars ($5) per day for jury service. In addition thereto, they shall be paid seven dollars and fifty cents ($7.50) per day as reimbursement of expenses incurred, which sum is hereby determined to be the equivalent of the minimum daily expenses reasonably to be incurred by such juror.
  2. Persons who appear in court in response to a summons for jury duty and who are not relieved from jury service shall receive full compensation for each day they are required to be and are in attendance, even though they are not sworn or accepted for jury service.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 28, effective January 2, 1978.

NOTES TO DECISIONS

1.Illegally Summoned Jurors.

Illegally summoned jurors are not entitled to pay for their services. (Decided under prior law)Brown v. Shannon, 280 Ky. 88 , 132 S.W.2d 525, 1939 Ky. LEXIS 60 ( Ky. 1939 ).

2.Not Entitled to Minimum Wage.

Although jurors were only paid $12.50 a day for their service, the fact that jurors were not being paid according to law was of no prejudice, or even legitimate interest, to defendant in his capacity as a defendant in a criminal proceeding; and, even if defendant could somehow challenge the juror's pay, the simple fact was that the jurors were not entitled to minimum wage for their jury service, and defendant's rights to due process and to a fair and impartial jury were not violated based on the jurors being paid less than minimum wage. 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).

29A.180. Responsibility for needs of jurors, transportation to view scene, security personnel, equipment, and services.

  1. The sheriff or city police, as appropriate, shall be responsible for meals, housing, and other incidental needs of grand jurors and petit jurors in Circuit Court and in District Court when the jurors are kept overnight or otherwise sequestered when ordered to do so by the judge of the court for which the jurors were summoned. The expenses for these services shall be borne by the Finance and Administration Cabinet and the officer shall be reimbursed in accordance with administrative regulations issued by the Finance and Administration Cabinet, pursuant to KRS Chapter 13A.
  2. The sheriff or city police, as appropriate, shall be responsible for the transportation of jurors and other authorized persons to views of the scene or other locations authorized by the court pursuant to KRS 29A.310 . In criminal cases the expenses for these services shall be borne by the Finance and Administration Cabinet, and the sheriff shall be reimbursed in accordance with administrative regulations issued by the Finance and Administration Cabinet, pursuant to KRS Chapter 13A. Excepting views conducted under the Eminent Domain Act of Kentucky, in civil cases these expenses shall be paid by the party requesting the viewing.
  3. The sheriff or city police, as appropriate, shall be responsible for providing any specialized security personnel, equipment, and services which the judge, with the consent of the Chief Justice, shall deem necessary for the conduct of a trial in which the judge believes that special security precautions are necessary or desirable. The expenses for these services shall be borne by the Finance and Administration Cabinet, and the officer shall be reimbursed in accordance with administrative regulations issued by the Finance and Administration Cabinet, pursuant to KRS Chapter 13A. In such cases, the judge may also request the Chief Justice to provide the services of the Department of Kentucky State Police to ensure proper security precautions relating to the case.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 29, effective January 2, 1978; 1978, ch. 338, § 1, effective March 30, 1978; 1994, ch. 508, § 7, effective July 15, 1994; 2007, ch. 85, § 114, effective June 26, 2007; 2019 ch. 44, § 2, effective June 27, 2019.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in subsection (2) of this section is compiled as KRS 416.540 to 416.680 .

Opinions of Attorney General.

Pursuant to subsection (1) of this section, the sheriff, city police or city marshal, as appropriate, shall be initially responsible for meals, housing and other incidental needs of grand and petit jurors in Circuit and District Court when the jurors are kept overnight or otherwise sequestered when ordered to do so by the judge of the court for which the jurors were summoned, and, since the officer who had to pay for such services initially will be reimbursed by the finance department, KRS 44.020 is not involved. OAG 81-336 .

A copy of the court order authorizing the sequestering of jurors should be made available to the finance and administration cabinet, pursuant to subsection (1) of this section. OAG 83-19 .

Where jurors are ordered sequestered by the court, the sheriff, or officer designated, must initially pay the expenses in connection with housing and meals, and other incidental needs, since subsection (1) of this section provides that such officer shall be reimbursed; a court has no statutory authority to direct that the finance and administration cabinet make direct payments to the providing vendors. OAG 83-19 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Admonition to Jury, Form 19.14.

29A.190. Adjournment of juries.

The court may adjourn the whole or part of the petit jury to any day of their required periods of service, but they shall not be paid for the time they stand adjourned. The grand jury may be adjourned in like manner without pay.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 30, effective January 2, 1978.

29A.200. Number of grand jurors — Number required to find indictment.

A grand jury shall consist of twelve (12) persons, nine (9) of whom concurring may find an indictment.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 31, effective January 2, 1978.

NOTES TO DECISIONS

1.Number for Indictment.

Indictment by a grand jury of 16 persons was invalid. (Decided under prior law)Downs v. Commonwealth, 92 Ky. 605 , 18 S.W. 526, 13 Ky. L. Rptr. 820 , 1892 Ky. LEXIS 27 ( Ky. 1892 ).

Even if the two who are objected to were ineligible to sit, which ineligibility was not established, this was not a valid reason for quashing the indictment in view of the requirement of former section that: “A grand jury shall consist of twelve persons, nine of whom concurring, may find an indictment.” (Decided under prior law)Rice v. Commonwealth, 387 S.W.2d 4, 1965 Ky. LEXIS 452 ( Ky. 1965 ).

Opinions of Attorney General.

Absent a specific statutory provision, a private citizen has no individual right to present evidence directly to a grand jury. OAG 09-010 .

29A.210. Summoning and convening of regular grand juries — Sessions.

  1. A regular grand jury shall be summoned upon the order of the Chief Circuit Judge. The grand jury shall be convened at least once every four (4) months at such time as may be designated by the Circuit Court. The court may require the grand jury to convene more often if the ends of justice or the needs of the county so require. The court may require the grand jury to convene if the Commonwealth’s or county attorney certifies to the court that there are defendants who have been bound over to the grand jury and that there is a need for the grand jury to consider the return of any indictments.
  2. The Chief Justice may authorize any Chief Circuit Judge to impanel an additional regular grand jury upon a showing that a single grand jury cannot handle the volume of business before the court.
  3. A regular grand jury shall remain in session until discharged by the court but shall not remain in session longer than twenty (20) days of actual court attendance except when necessary to complete work on a single case in which testimony has already been taken.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 32, effective January 2, 1978.

NOTES TO DECISIONS

1.In General.

Grand jury is a part of the court, and under judicial control, so there can be no doubt that a session of the grand jury is a proceeding in a Circuit Court, however, this does not mean that the court “controls” a grand jury’s proceedings; the grand jury’s functional independence from the judicial branch is evident in both the scope of its power to investigate criminal wrongdoing and in the manner in which that power is exercised. Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ), limited, Gilbert v. McDonald-Burkman, 320 S.W.3d 79, 2010 Ky. LEXIS 193 ( Ky. 2010 ).

2.Function of Grand Jury.

The grand jury was a body composed of freeholders of the county, whose function it was to inquire into the commission of crimes and return accusations in the form of indictments. (Decided under prior law)Turk v. Martin, 232 Ky. 479 , 23 S.W.2d 937, 1930 Ky. LEXIS 25 ( Ky. 1930 ).

3.Additional Grand Jury.

Under the provisions of this section and the inherent power of the judiciary to determine its own rules and procedures, notwithstanding any statute to the contrary, the Chief Judge of the Circuit Court had the authority to convene an additional grand jury where there were irregularities in empaneling the original grand jury. Spanski v. Commonwealth, 610 S.W.2d 290, 1980 Ky. LEXIS 277 ( Ky. 1980 ).

Where over 40 indictments were dismissed because of an irregularity in empaneling the grand jury, the chief Circuit Court Judge legally empanelled a second grand jury, having determined that such action met “the ends of justice or the needs of the county” under this section, even though such action was not requested by the Commonwealth’s attorney or county attorney, which is the alternate method available under this section. Spanski v. Commonwealth, 610 S.W.2d 290, 1980 Ky. LEXIS 277 ( Ky. 1980 ).

4.Indictment.

An indictment of a Negro must have been set aside if in the selection of the grand jury negroes were systematically excluded because of their race. (Decided under prior law)Bush v. Kentucky, 107 U.S. 110, 1 S. Ct. 625, 27 L. Ed. 354, 1882 U.S. LEXIS 1207 (U.S. 1883).

Where grand jury was ordered by an order entered May 26th to reconvene on May 27th for further business and there was no order entered discharging the grand jury prior to that date and the court speaks through its records, the May, 1958 grand jury had not been discharged prior to May 27th and indictment returned that day was not invalid. (Decided under prior law)McIntosh v. Commonwealth, 368 S.W.2d 331, 1963 Ky. LEXIS 47 ( Ky. 1963 ).

Opinions of Attorney General.

Neither KRS 29A.070 nor this section requires the court to place the summonses in the hands of the sheriff for actual delivery to jurors, although it may do so if it so desires; the court may require the court clerk to mail the summonses. OAG 83-100 .

Research References and Practice Aids

ALR

Women as grand jurors. 157 A.L.R. 461.

Police officers or other law enforcement officers as grand jurors. 72 A.L.R.3d 895; 72 A.L.R.3d 958.

Presence of persons not authorized by Fed. R. Crim. P. 6(d) during session of grand jury as warranting dismissal of indictment. 68 A.L.R. Fed. 798.

29A.220. Special grand juries — Sessions — Extension of sessions.

  1. Any Chief Circuit Judge may summon for cause a special grand jury to deal with a situation requiring lengthy investigation which cannot be adequately handled during the term of the regular grand jury.
  2. A special grand jury shall remain in session until discharged by the court, but shall not remain in session longer than ninety (90) days, provided, however, that a special grand jury may be extended for additional ninety (90) day periods on the written order of the Chief Circuit Judge.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 33, effective January 2, 1978.

NOTES TO DECISIONS

1.Special Grand Jury.

Under proper conditions a Circuit Judge may, in addition to the regularly impaneled grand jury, impanel an additional grand jury to function concurrently. (Decided under prior law) Board of Education v. Nicholson, 551 S.W.2d 1, 1976 Ky. LEXIS 157 ( Ky. 1976 ).

2.— Request.

A request for the impaneling of a special grand jury to consider matters of alleged financial irregularities in the operation of a school board during the period the regular grand jury was in session was denied where there was no charge that the Board of Education had violated any penal law nor any charge that any member of the Board of Education had committed a crime or violated any penal law of the Commonwealth. (Decided under prior law) Board of Education v. Nicholson, 551 S.W.2d 1, 1976 Ky. LEXIS 157 ( Ky. 1976 ).

Although a motion and supporting affidavit requesting the impaneling of a special grand jury need not set forth in detail evidence on which the Commonwealth’s attorney may rely, there must be at least an allegation of conduct which would constitute reasonable cause to believe that a grand jury investigation will disclose criminal activity within the court’s jurisdiction to punish and in addition the papers must make it apparent that the regular grand jury is, for reasons beyond its control, unable to adequately function. (Decided under prior law) Board of Education v. Nicholson, 551 S.W.2d 1, 1976 Ky. LEXIS 157 ( Ky. 1976 ).

29A.230. Release of juror from grand jury service and retention as petit juror.

If a juror selected is incapable of serving as a grand juror but capable of serving as a petit juror, the judge may, for good cause shown, release the juror from grand jury service and retain him as a petit juror.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 34, effective January 2, 1978.

NOTES TO DECISIONS

1.Juror Transfer.

It was not an abuse of discretion for the trial judge to transfer a member of the grand jury to the petit jury as there was no prejudice to defendant. There was no evidence that the juror would have voted against returning an indictment, and it was speculative that the defendant would have avoided being formally charged with that particular juror on the grand jury. Parker v. Commonwealth, 952 S.W.2d 209, 1997 Ky. LEXIS 84 ( Ky. 1997 ), cert. denied, 522 U.S. 1122, 118 S. Ct. 1066, 140 L. Ed. 2d 126, 1998 U.S. LEXIS 1067 (U.S. 1998).

Research References and Practice Aids

Kentucky Law Journal.

Stipanowich, The Quiet Revolution Comes to Kentucky: A Case Study in Community Mediation, 81 Ky. L.J. 855 (1992-93).

29A.240. Oath to grand jury.

The court shall swear the grand jury using substantially the following oath: “Do you swear or affirm that you will hear and weigh carefully all the evidence presented to you, and that you will do your duty as prescribed by law, and that you will carry out carefully any investigations which you are requested to make?”

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 35, effective January 2, 1978; 1982, ch. 449, § 9, effective October 1, 1982.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Oath to Grand Jury, Form 11.07.

29A.250. Foreman of grand jury — Oath to witnesses.

The grand jurors shall elect one (1) of their members to be foreman. The foreman shall administer an oath to each witness who testifies before the grand jury, substantially as follows: “Do you swear or affirm that you will tell the truth, the whole truth, and nothing but the truth?”.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 36, effective January 2, 1978; 1982, ch. 449, § 10, effective October 1, 1982.

NOTES TO DECISIONS

1.Compliance with Law.

An indictment for false swearing before a grand jury need not have shown affirmatively that the grand jury was properly sworn and a foreman appointed, since regularity in complying with mandatory statutes was presumed.(Decided under prior law)Young v. Commonwealth, 275 Ky. 98 , 120 S.W.2d 772, 1938 Ky. LEXIS 372 ( Ky. 1938 ).

Cited:

Smith v. Commonwealth, 734 S.W.2d 437, 1987 Ky. LEXIS 200 ( Ky. 1987 ), cert. denied, Smith v. Kentucky, 484 U.S. 1036, 108 S. Ct. 762, 98 L. Ed. 2d 778, 1988 U.S. LEXIS 425 (1988).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Oath to Witness Before Grand Jury, Form 11.05.

ALR

Officer member of grand jury as within constitutional or statutory provision in relation to oath or affirmation. 118 A.L.R. 1098.

29A.260. Replacement of grand juror who is excused.

At any time for cause shown, the court may excuse a grand juror either temporarily or permanently and may swear another grand juror from a current jury panel in place of the one excused. The discharge of any such grand juror shall in no way or manner affect any indictment found by the grand jury as it was composed either before or after such discharge. If it is impossible to fill the vacancy on the grand jury from a current jury panel, the Chief Circuit Judge may summon, using the procedure in KRS 29A.060(5), such number of prospective jurors as deemed necessary for the purpose.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 37, effective January 2, 1978; 1982, ch. 449, § 11, effective October 1, 1982; 2002, ch. 252, § 8, effective July 15, 2002.

29A.270. Right to jury trial.

  1. Defendants shall have the right to a jury trial in all criminal prosecutions, including prosecutions for violations of traffic laws, in the Circuit and District Courts. The defendant may request a jury trial at any time prior to the time his case is called for trial.
  2. There shall be no right to a jury trial in civil actions in which the amount in controversy does not exceed two hundred and fifty dollars ($250).
  3. Nothing in this section shall be construed to restrict the power of the judge to punish for contempt of court.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 38, effective January 2, 1978; 1978, ch. 289, § 1, effective June 17, 1978.

NOTES TO DECISIONS

Analysis

1.Waiver.

An accused can waive his right to a jury trial. Crone v. Commonwealth, 680 S.W.2d 138, 1984 Ky. App. LEXIS 627 (Ky. Ct. App. 1984).

Where the record did not indicate in any manner that the defendant waived his right to a jury trial, the defendant was entitled to a jury trial pursuant to his request, and it was error for the court to deny the jury trial. Crone v. Commonwealth, 680 S.W.2d 138, 1984 Ky. App. LEXIS 627 (Ky. Ct. App. 1984).

2.Right Denied.

The trial judge erred by refusing to allow defendant to be sentenced by a jury on resentencing for a wanton murder conviction since a criminal defendant has a statutory right to have his sentence set by a jury and the trial judge is not vested with the authority to abrogate a criminal defendant’s right to jury sentencing by speculating on what sentence the jury would have imposed if properly instructed. Wilson v. Commonwealth, 765 S.W.2d 22, 1989 Ky. LEXIS 13 ( Ky. 1989 ).

3.No Request Made.

In the absence of a request for a jury trial pursuant to this section, Rule 9.26 of the Rules of Criminal Procedure should not be construed to mandate that a jury trial must be conducted in every criminal case no matter how minor the charged offense might be. Donta v. Commonwealth, 858 S.W.2d 719, 1993 Ky. App. LEXIS 95 (Ky. Ct. App. 1993).

4.Contempt.

In an action for forcible detainer, the trial court did not abuse its discretion in punishing the tenant for her contempt of court under under Ky. Rev. Stat. Ann. § 29A.270(3)—through her refusal to appear at the jury trial she requested and as duly ordered by the trial court—by converting the jury trial to a bench trial. Johnson v. Bielefeld, 2022 Ky. App. LEXIS 5 (Ky. Ct. App. Jan. 14, 2022).

Notes to Unpublished Decisions

1.Waiver.

Unpublished decision: Where defendants waived their right to a jury trial, the Commonwealth of Kentucky’s consent was not required for the bench trial on defendants’ charges of driving under the influence, first offense; disregarding a stop sign; and reckless driving. Commonwealth v. Green, 2004 Ky. App. LEXIS 171 (Ky. Ct. App. June 11, 2004), rev'd, 194 S.W.3d 277, 2006 Ky. LEXIS 171 ( Ky. 2006 ).

Unpublished decision: Where defendants waived their right to a jury trial, the Commonwealth of Kentucky’s consent was not required for the bench trial on defendants’ charges of driving under the influence, first offense; disregarding a stop sign; and reckless driving. Commonwealth v. Green, 2004 Ky. App. LEXIS 171 (Ky. Ct. App. June 11, 2004), rev'd, 194 S.W.3d 277, 2006 Ky. LEXIS 171 ( Ky. 2006 ).

Opinions of Attorney General.

In a misdemeanor case in District Court the defendant may waive his right to be tried by a jury, and he may instead be tried by the judge of the court without the intervention of a jury, provided that (1) the defendant affirmatively in open court waives such right and enters into the waiver understandingly and voluntarily and (2) the Commonwealth agrees and the trial court approves; thus, the waiver would require both the consent of the prosecutor and the judge and, in addition, where the prosecutor objects to the waiver, and thus in effect demands a trial by jury, he is not required to advance any specific reason for his demanding a trial by jury. OAG 80-533 .

Research References and Practice Aids

Cross-References.

Demand for jury trial, see Ky. CR 38.02.

Trial by jury or by court, see Ky. RCr 9.26.

Kentucky Law Journal.

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

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Admonition to Jury, Form 19.14.

29A.280. Number of jurors in Circuit and District Courts — Number required for verdict.

  1. Juries for all trials in Circuit Court shall be composed of twelve (12) persons. Juries for all trials in District Court shall be composed of six (6) persons.
  2. In Circuit Court, at any time before the jury is sworn, the parties with the approval of the court may stipulate that the jury shall consist of any number less than twelve (12), except that no jury shall consist of less than six (6) persons.
  3. A unanimous verdict is required in all criminal trials by jury. The agreement of at least three-fourths (3/4) of the jurors is required for a verdict in all civil trials by jury in Circuit Court. The agreement of at least five-sixths (5/6) of the jurors is required for a verdict in all civil trials by jury in District Court.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 39, effective January 2, 1978.

NOTES TO DECISIONS

1.Jury of Less Than Twelve — Agreement.

Defendant convicted of common-law crime of criminal libel, a misdemeanor case, was bound by his agreement to accept a majority verdict where there was no showing that he did not understandingly and voluntarily enter into the agreement. Ashton v. Commonwealth, 405 S.W.2d 562, 1965 Ky. LEXIS 4 ( Ky. 1965 ), rev'd, 384 U.S. 195, 86 S. Ct. 1407, 16 L. Ed. 2d 469, 1966 U.S. LEXIS 1644 (U.S. 1966).

In misdemeanor cases the defendant may waive not only a 12-man jury but unanimity of the jurors in reaching their verdict, provided always that such waiver agreement is entered into understandingly and voluntarily, and provided of course the Commonwealth agrees and the trial court approves. Ashton v. Commonwealth, 405 S.W.2d 562, 1965 Ky. LEXIS 4 ( Ky. 1965 ), rev'd, 384 U.S. 195, 86 S. Ct. 1407, 16 L. Ed. 2d 469, 1966 U.S. LEXIS 1644 (U.S. 1966).

2.Civil cases.

In cases brought in the state court under Federal Employers’ Liability Act, three-fourths or more of the jury may return a verdict, notwithstanding the Seventh Amendment to the Constitution of the United States which has been construed to require unanimous verdict of a jury of 12. Chesapeake & O. R. Co. v. Kelly’s Adm’x, 161 Ky. 655 , 171 S.W. 185, 1914 Ky. LEXIS 123 ( Ky. 1914 ), rev’d, Chesapeake & O. R. Co. v. Kelly, 241 U.S. 485, 36 S. Ct. 630, 60 L. Ed. 1117, 1916 U.S. LEXIS 1728 (1916), rev’d on other grounds, Chesapeake & O. R. Co. v. Kelly, 241 U.S. 485, 36 S. Ct. 630, 60 L. Ed. 1117, 1916 U.S. LEXIS 1728 (1916). See Louisville v. N. R. Co. v. Winkler, 162 Ky. 843 , 173 S.W. 151, 1915 Ky. LEXIS 164 ( Ky. 1915 ); Cincinnati, N.O. & T.P. Ry. v. Claybourne’s Adm’r, 169 Ky. 315 , 183 S.W. 903, 1916 Ky. LEXIS 690 (1916); Louisville & N. R. Co. v. Thomas' Adm'r, 170 Ky. 145 , 185 S.W. 840, 1916 Ky. LEXIS 36 ( Ky. 1916 ); Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211, 36 S. Ct. 595, 60 L. Ed. 961, 1916 U.S. LEXIS 1744 (U.S. 1916).

The “civil actions” referred to in Ky. Const., § 248, with which former section conformed, were such actions as involve property rights between individuals only, and do not embrace penal actions which are of a quasi-criminal nature. American Express Co. v. Commonwealth, 171 Ky. 1 , 186 S.W. 887, 1916 Ky. LEXIS 291 ( Ky. 1 916 ).

Instruction, in bastardy proceeding, that verdict must be unanimous, was prejudicially erroneous to complainant, since bastardy proceedings are civil, not criminal. Commonwealth ex rel. Baker v. Bondie, 277 Ky. 207 , 126 S.W.2d 148, 1939 Ky. LEXIS 639 ( Ky. 1939 ).

It is proper, in bastardy case, to instruct that nine or more may return a verdict. Goldy v. Commonwealth, 289 Ky. 613 , 159 S.W.2d 989, 1942 Ky. LEXIS 609 ( Ky. 1942 ).

An action by Commonwealth to recover forfeiture on bond is a “civil action.” Commonwealth v. McKee, 293 Ky. 706 , 170 S.W.2d 340, 1943 Ky. LEXIS 707 ( Ky. 1943 ).

When a mentally ill person faces the possibility of involuntary hospitalization in Circuit Court, he or she is entitled to a jury of twelve (12) persons at trial. Tolley v. Commonwealth, 65 S.W.3d 531, 2001 Ky. App. LEXIS 49 (Ky. Ct. App. 2001).

3.Criminal Cases.

Unanimity is violated where jury is instructed that it can find defendant guilty under either of two theories, if the evidence only supports a conviction under one of the two theories. Davis v. Commonwealth, 967 S.W.2d 574, 1998 Ky. LEXIS 44 ( Ky. 1998 ), modified, 1998 Ky. LEXIS 101 (Ky. June 18, 1998).

Trial court acted properly in allowing the Commonwealth to waive one of its peremptory challenges to allow a full six (6) member jury where defendant received the required number of peremptory strikes, three (3), and exercised them accordingly. Fitzgerald v. Commonwealth, 148 S.W.3d 817, 2004 Ky. App. LEXIS 308 (Ky. Ct. App. 2004).

Twelve-person jury is a fundamental right in the Commonwealth, and any waiver of that right must be knowingly and voluntarily made by the defendant personally, not by his counsel unilaterally as a trial-management decision. While waiver of a twelve-person jury should be established through the trial court’s colloquy with the defendant on the record, failure to do so may be harmless error; where counsel has stipulated to proceeding with less than twelve jurors and the defendant has seemingly acquiesced, on remand the trial court should conduct an evidentiary hearing to determine if the defendant knowingly and voluntarily consented to that decision. Commonwealth v. Simmons, 394 S.W.3d 903, 2013 Ky. LEXIS 32 ( Ky. 2013 ).

Jury instruction for use of a minor under the age of 18 in a sexual performance as to defendant’s niece denied him a unanimous verdict under KRS 29A.280(3) because it failed to differentiate factually between the alleged instances of sexual abuse; the instruction allowed the jury to convict him of one crime based on two separate and distinct criminal acts that violated the same statute. Kingrey v. Commonwealth, 396 S.W.3d 824, 2013 Ky. LEXIS 85 ( Ky. 2013 ).

4.Signatures on Verdict.

A verdict in a civil action returned by nine jurors is valid, although one of the jurors made his signature by making his mark which was not attested by any witness. Pugh v. Jackson, 154 Ky. 772 , 159 S.W. 600, 1913 Ky. LEXIS 176 ( Ky. 1913 ).

Where only six of the jurors who signed the liability verdict also signed the verdict fixing damages the verdict was void and a new trial was granted since at least nine members of the jury who rendered the verdict for damages also had to render a verdict finding defendant to be the sole cause of the accident. Baxter v. Tankersley, 416 S.W.2d 737, 1967 Ky. LEXIS 283 ( Ky. 1967 ), overruled, Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503, 1989 Ky. LEXIS 84 ( Ky. 1989 ).

5.Instructions.

The court should instruct the jury that nine may render a verdict, but a verdict concurred in by nine is valid even though no instruction was given. State Farm Mut. Auto. Ins. Co. v. Kegley, 292 Ky. 826 , 168 S.W.2d 2, 1942 Ky. LEXIS 152 ( Ky. 1942 ).

6.Separate Issues.

The requirement of “agreement of at least three-fourths (3/4) of the jurors” contained in this section is satisfied by the agreement of any nine jurors on any issue separately submitted to the panel. Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503, 1989 Ky. LEXIS 84 ( Ky. 1989 ).

7.Special Interrogatory.

Each special interrogatory submitted to the jury is to be treated as a separate verdict which may be reached by any nine or more members of the panel. Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503, 1989 Ky. LEXIS 84 ( Ky. 1989 ).

Cited:

Smith v. Commonwealth, — S.W.3d —, 2011 Ky. App. LEXIS 9 (Ky. Ct. App. 2011).

Research References and Practice Aids

Cross-References.

Coroner’s jury consists of six persons, KRS 72.420 .

Jury to consist of six persons in inferior court, Ky. Const., § 248.

Treatises

Kentucky Instructions To Juries (Civil), 5th Ed., Animals, § 15.01.

Kentucky Instructions To Juries (Civil), 5th Ed., General Principles, §§ 13.10, 13.20.

ALR

State statutes permitting verdicts by less than twelve jurymen, as applicable to actions under Federal Employers’ Liability Act. 12 A.L.R. 713; 36 A.L.R. 917; 89 A.L.R. 693.

Quotient verdict or award generally. 8 A.L.R.3d 335.

29A.290. Examination of petit jurors — Challenges — Alternate jurors.

  1. The voir dire examination of petit jurors shall be conducted in the manner prescribed by the Supreme Court.
  2. The parties shall have the right to challenge jurors as follows:
    1. There shall be an unlimited right to challenge jurors for cause; and
    2. The number of peremptory challenges shall be prescribed by the Supreme Court.
  3. The judge may select alternate jurors. The procedures for the use of alternate jurors shall be prescribed by the Supreme Court.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 40, effective January 2, 1978.

NOTES TO DECISIONS

1.Discretion of Court.

The court had a broad discretion in determining the qualification of a juror from his entire examination and it was not unfair for the court not to allow defendant’s attorney to question prospective jurors more thoroughly where quite a liberal examination was permitted. (Decided under prior law)Tarrence v. Commonwealth, 265 S.W.2d 40, 1953 Ky. LEXIS 1267 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706, 1954 U.S. LEXIS 1429 (U.S. 1954).

2.Challenge for Cause.

The fact that the daughter of one of the jurors was the widow of the half-nephew of the president of the company which was a defendant in the action was not ground for challenge for cause. (Decided under prior law)Miller v. South Covington & C. S. R. Co., 74 S.W. 747, 25 Ky. L. Rptr. 207 , 1903 Ky. LEXIS 369 (Ky. Ct. App. 1903).

Relationship of the juror with the accused is no ground for challenge for cause when the juror is ignorant of the relationship. Miracle v. Commonwealth, 148 Ky. 453 , 146 S.W. 1136, 1912 Ky. LEXIS 477 ( Ky. 1912 ).

Not being a taxpayer is no ground for challenge for cause. (Decided under prior law)Covington v. Lovelace, 243 Ky. 627 , 49 S.W.2d 593, 1932 Ky. LEXIS 181 ( Ky. 1932 ).

Relationship of a juror with the accused is ground for challenge for cause when the juror is aware of the relationship. (Decided under prior law)Williams v. Commonwealth, 254 Ky. 277 , 71 S.W.2d 626, 1934 Ky. LEXIS 73 ( Ky. 1934 ).

In a suit against a railroad the fact that a prospective juror is a stockholder in another railroad and that the senior member of the firm representing the defendant railroad had been his attorney does not disclose such relationships between the prospective juror and the defendant as to warrant disqualification for cause. (Decided under prior law)Whitney v. Louisville & N. R. Co., 296 Ky. 381 , 177 S.W.2d 139, 1944 Ky. LEXIS 539 ( Ky. 1944 ).

The purpose of the right of challenge for cause is to prevent an incompetent, partial, biased and otherwise disqualified person from serving as a juror. (Decided under prior law)Halleron v. Carrithers Creamery, 239 S.W.2d 92, 1951 Ky. LEXIS 855 ( Ky. 1951 ).

Where a juror was challenged by plaintiff for cause because she was a defendant in a similar condemnation proceeding on the same project and the court, after interrogating the juror and concluding that she was qualified to sit, denied the challenge, it was erroneous for the trial court to deny the plaintiff’s timely challenge because her personal involvement in pending litigation in which her property was being taken for the same project stamped her as being a biased person. (Decided under prior law)Commonwealth, Dep't of Highways v. Ginsburg, 516 S.W.2d 868, 1974 Ky. LEXIS 182 ( Ky. 1974 ).

3.Peremptory Challenges.

A verdict is improper when a peremptory challenge is not exercised by reason of false information. Randolph v. Commonwealth, 716 S.W.2d 253, 1986 Ky. LEXIS 291 ( Ky. 1986 ). Overruled in part on other grounds as stated in Commonwealth v. Wolford, 4 S.W.3d 534, 1999 Ky. LEXIS 93 ( Ky. 1999 ).

Where defendant was convicted of second-degree assault and tampering with physical evidence, the trial court did not commit plain error in permitting each party nine peremptory challenges. Because the Kentucky General Assembly did not improperly delegate its legislative duty to the Kentucky Supreme Court in the area of peremptory challenges, there were no constitutional infirmities in either KRS 29A.290 or RCr P. 9.40. Spencer v. Commonwealth, 2013 Ky. App. LEXIS 123 (Ky. Ct. App. Aug. 9, 2013), review denied, ordered not published, 2014 Ky. LEXIS 268 (Ky. June 19, 2014).

Defendant's claim that trial courts' discretion to set the appropriate number of prosecutorial peremptory challenges violated separation of powers was not considered because defendant did not give the Attorney General notice of defendant's constitutional argument. Craft v. Commonwealth, 483 S.W.3d 837, 2016 Ky. LEXIS 107 ( Ky. 2016 ).

4.Separate Rights of Challenge.

Where the defendants in a personal injury action are charged with independent acts of negligence, the interests of the defendants are almost always antagonistic because each may escape liability by convincing the jury that the other was solely or primarily responsible and, therefore, each should have separate rights of challenge. (Decided under prior law)Roberts v. Taylor, 339 S.W.2d 653, 1960 Ky. LEXIS 484 ( Ky. 1960 ).

Where at the time the jury was selected in a malpractice action, the interests of the two teams of physicians were antagonistic, the trial court did not err in granting six peremptory challenges to the physicians, and it was immaterial that the cross-claims between the two teams of physicians were withdrawn at the end of the trial. (Decided under prior law)Mackey v. Greenview Hospital, Inc., 587 S.W.2d 249, 1979 Ky. App. LEXIS 462 (Ky. Ct. App. 1979).

Multiple defendants are entitled to additional peremptory challenges if their interests are antagonistic. (Decided under prior law)Mackey v. Greenview Hospital, Inc., 587 S.W.2d 249, 1979 Ky. App. LEXIS 462 (Ky. Ct. App. 1979).

5.Per Se Disqualification.

A per se disqualification is not required merely because a juror does not instantly embrace every legal concept presented during voir dire examination. The test is not whether a juror agrees with the law when it is presented in the most extreme manner. The test is whether, after having heard all of the evidence, the prospective juror can conform his views to the requirements of the law and render a fair and impartial verdict. Mabe v. Commonwealth, 884 S.W.2d 668, 1994 Ky. LEXIS 98 ( Ky. 1994 ).

6.Bias.

A potential juror may be disqualified from service because of connection to the case, parties or attorneys and that is a bias that will be implied as a matter of law; the trial court must determine the existence of bias based on the particular facts of each case. Randolph v. Commonwealth, 716 S.W.2d 253, 1986 Ky. LEXIS 291 ( Ky. 1986 ). Overruled in part on other grounds as stated in Commonwealth v. Wolford, 4 S.W.3d 534, 1999 Ky. LEXIS 93 ( Ky. 1999 ).

Even where jurors disclaim any bias and state that they can give the defendant a fair trial, conditions may be such that their connection would probably subconsciously affect their decision in the case. Randolph v. Commonwealth, 716 S.W.2d 253, 1986 Ky. LEXIS 291 ( Ky. 1986 ). Overruled in part on other grounds as stated in Commonwealth v. Wolford, 4 S.W.3d 534, 1999 Ky. LEXIS 93 ( Ky. 1999 ).

The failure of the juror to reveal on voir dire examination that she was employed as a secretary by the Commonwealth’s attorney was implied bias, as there were reasonable grounds to believe that she could not render a fair and impartial verdict, and it was entirely possible that she may have been in a position to have known about the prosecution prior to trial. Randolph v. Commonwealth, 716 S.W.2d 253, 1986 Ky. LEXIS 291 ( Ky. 1986 ). Overruled in part on other grounds as stated in Commonwealth v. Wolford, 4 S.W.3d 534, 1999 Ky. LEXIS 93 ( Ky. 1999 ).

7.Time for Making Challenge.

A verdict will not be set aside, in a case in which a railroad company was a litigant, because a juror had ridden on a pass of that railroad, when that fact was not brought to the attention of the court until after the voir dire. (Decided under prior law)Trent v. Chesapeake & O. R. Co., 221 Ky. 622 , 299 S.W. 556, 1927 Ky. LEXIS 792 ( Ky. 1927 ); Covington v. Lovelace, 243 Ky. 627 , 49 S.W.2d 593, 1932 Ky. LEXIS 181 ( Ky. 1932 ).

Where answer of juror on his voir dire examination, or his failure to answer, led party into accepting juror that he would have challenged had he acquired the true facts through the answer, a new trial should have been granted although the true answer would not have disclosed facts justifying a challenge for cause. (Decided under prior law)Louisville & N. R. Co. v. Gregory, 289 Ky. 211 , 158 S.W.2d 1, 1941 Ky. LEXIS 22 ( Ky. 1941 ).

Generally, failure to object to juror until after verdict was a waiver of all disqualifications, but where disqualifications could not have been anticipated nor discovered on diligent examination of juror, trial court may have had discretion to grant new trial if it believed the losing party had been prejudiced. (Decided under prior law)Higgins v. Commonwealth, 287 Ky. 767 , 155 S.W.2d 209, 1941 Ky. LEXIS 637 ( Ky. 1941 ), overruled, Woodard v. Commonwealth, 147 S.W.3d 63, 2004 Ky. LEXIS 244 ( Ky. 2004 ).

A challenge to a juror, or to the panel, for cause, must have been made before the trial started in both civil and criminal cases. (Decided under prior law)Hatton v. Commonwealth, 294 Ky. 740 , 172 S.W.2d 564, 1943 Ky. LEXIS 521 ( Ky. 1943 ).

An objection could not be raised for the first time in a motion for a new trial since acceptance of a juror precluded a person from thereafter making a challenge for cause. (Decided under prior law)Vaughn v. Commonwealth, 255 S.W.2d 613, 1953 Ky. LEXIS 668 ( Ky. 1953 ).

A statement by the judge to the jury that they would be given a blood-curdling oath but they did not have to pay any attention to it was not ground for a mistrial but was a matter going to their fitness to serve hence required to be raised by challenge before the jury was sworn. (Decided under prior law)Lanning v. Brown, 377 S.W.2d 590, 1964 Ky. LEXIS 497 ( Ky. 1964 ).

8.— After Verdict.

A defendant may not challenge a juror or make objection to his acceptance after the verdict. (Decided under prior law)Levi v. Commonwealth, 405 S.W.2d 559, 1965 Ky. LEXIS 3 ( Ky. 1965 ), cert. denied, 385 U.S. 956, 87 S. Ct. 391, 17 L. Ed. 2d 303, 1966 U.S. LEXIS 187 (U.S. 1966).

Where a juror, a lifelong friend of defendant, freely admitted he had formed an opinion before the trial but said he would disregard it and require the Commonwealth to prove its case beyond a reasonable doubt, and the trial judge believed the juror could disregard his previously formed opinion by his failure to excuse him, and counsel for defendant by leading questions to the juror indicated he would be a welcome juror and did not challenge him nor make objections to his acceptance until after the trial, the juror was qualified. (Decided under prior law)Levi v. Commonwealth, 405 S.W.2d 559, 1965 Ky. LEXIS 3 ( Ky. 1965 ), cert. denied, 385 U.S. 956, 87 S. Ct. 391, 17 L. Ed. 2d 303, 1966 U.S. LEXIS 187 (U.S. 1966).

9.— In Motion for New Trial.

Where the defendant originally pleaded not guilty to a charge of armed robbery and then on the day of trial, within the hearing of the prospective jurors, changed his plea to guilty, and then changed his plea back to not guilty and was tried by a panel of jurors selected from those who had been in the courtroom, and no claim that the jury was disqualified was made until so stated in a motion for a new trial, the claim that the jury was disqualified was not timely. (Decided under prior law)Phelps v. Commonwealth, 435 S.W.2d 86, 1968 Ky. LEXIS 202 ( Ky. 1968 ).

10.Failure to Challenge.

Defendant could not raise objection on appeal that two jurors had served at previous term of court, where he did not challenge them and record showed no objection or exception. (Decided under prior law)Blancett v. Commonwealth, 281 Ky. 686 , 136 S.W.2d 1069, 1940 Ky. LEXIS 85 ( Ky. 1940 ).

Disqualification of a juror on the ground of prior conviction of a felony, though a ground for challenge, was not sufficient to warrant setting aside the verdict where challenge was not made when the jury was impaneled, and there was no showing that appellant did not know of disqualification at time of impaneling. Disqualification may be waived by failure to challenge at proper time. (Decided under prior law)Mullins v. Commonwealth, 285 Ky. 804 , 149 S.W.2d 725, 1941 Ky. LEXIS 478 ( Ky. 1941 ).

11.Right to Truthful Voir Dire.

The right to challenge a juror includes the incidental right that the information elicited on voir dire shall be true. Randolph v. Commonwealth, 716 S.W.2d 253, 1986 Ky. LEXIS 291 ( Ky. 1986 ). Overruled in part on other grounds as stated in Commonwealth v. Wolford, 4 S.W.3d 534, 1999 Ky. LEXIS 93 ( Ky. 1999 ).

12.Failure of Juror to Make Disclosure.

Failure of three jurors, on voir dire examination in auto negligence case, to disclose that they had been involved in litigation of a minor character, in response to question as to whether they had been parties to litigation, was not prejudicial error. (Decided under prior law)Whitehead v. Stith, 279 Ky. 556 , 131 S.W.2d 455, 1939 Ky. LEXIS 307 ( Ky. 1939 ).

Where juror during preliminary examination of the jury panel denied that he had ever been represented by plaintiff’s counsel in a legal proceeding although he had been so represented, and defendants’ counsel was thereby deprived of right to exercise a peremptory challenge to juror, misconduct of juror required a reversal. (Decided under prior law)Eads v. Stockdale, 310 Ky. 446 , 220 S.W.2d 971, 1949 Ky. LEXIS 936 ( Ky. 1949 ).

Where two jurors falsely answered on voir dire that they had not been convicted of a felony and defendant did not discover the falsity until after the trial, a conviction for homicide was reversed. (Decided under prior law)Johnson v. Commonwealth, 311 Ky. 182 , 223 S.W.2d 741, 1949 Ky. LEXIS 1091 ( Ky. 1949 ).

13.Improper Selection.

A conviction may be set aside and a new trial granted where one of the jurors had worked with a prosecutor to select the jury unfavorable to the defendant. Randolph v. Commonwealth, 716 S.W.2d 253, 1986 Ky. LEXIS 291 ( Ky. 1986 ). Overruled in part on other grounds as stated in Commonwealth v. Wolford, 4 S.W.3d 534, 1999 Ky. LEXIS 93 ( Ky. 1999 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Boateng, A Lawyer As a Juror: An Impression, Volume 52, No. 3, Summer 1988 Ky. Bench & B. 24.

ALR

Contributing to fund for prosecution as disqualifying juror. 1 A.L.R. 519.

Betting on result as disqualifying juror. 2 A.L.R. 813.

Relationship to prosecutor or witness as disqualifying juror in criminal case. 18 A.L.R. 375.

Secret order or organization for suppression of crime, membership in as ground of challenge of juror. 31 A.L.R. 411; 158 A.L.R. 1361.

Presumption of innocence or rule as to reasonable doubt, failure to understand or unwillingness to accept, as rendering juror incompetent. 40 A.L.R. 612.

Personal injury or death action, questions to jury in, as to interest in, or connection with, indemnity insurance company. 56 A.L.R. 1454; 74 A.L.R. 849; 95 A.L.R. 388; 105 A.L.R. 1319; 4 A.L.R.2d 761.

Relationship to one financially affected by offense charged as disqualifying juror. 63 A.L.R. 183.

Statutory grounds for challenge of jurors for cause as exclusive of common-law grounds. 64 A.L.R. 645.

Extrinsic evidence in support of challenge to juror for cause, right to introduce. 65 A.L.R. 1056.

Implied bias or interest because of relationship to one who would be subject to challenge for that reason, challenge of proposed juror for. 86 A.L.R. 118.

Prospective juror’s connection with insurance company as ground for challenge for cause in action for personal injuries or damage to property. 103 A.L.R. 511.

Defense, prejudice against certain type of, as ground of challenge for cause of juror in criminal case. 112 A.L.R. 531.

Dissolution of marriage as affecting disqualifying relationship by affinity in case of juror. 117 A.L.R. 800.

Competency of juror as affected by his participation in a case of similar character, but not involving the party making the objection. 160 A.L.R. 753.

Personal injury or death action, questioning juror on voir dire regarding liability insurance. 4 A.L.R.2d 792.

Failure of juror in criminal case to disclose his previous jury service within disqualifying period as ground for reversal. 13 A.L.R.2d 1482.

Admissibility in civil case of juror’s affidavit or testimony to show bias, prejudice, or disqualification of a juror not disclosed on voir dire examination. 30 A.L.R.2d 914; 48 A.L.R.2d 971.

Racial, religious, economic, social, or political prejudice of proposed juror as ground of challenge on voir dire in criminal case. 54 A.L.R.2d 1204.

Prejudice of proposed juror against intoxicants and gambling as ground of challenge on voir dire in criminal case. 54 A.L.R.2d 1221.

Right to challenge for cause as prejudiced by appearance of additional counsel in civil case after impaneling of jury. 56 A.L.R.2d 971.

Prejudicial effect of reference, on voir dire examination of jurors, to settlement efforts or negotiations. 67 A.L.R.2d 560.

Prejudice of proposed juror against intoxicants as ground of challenge on voir dire in civil case. 72 A.L.R.2d 217.

Racial, religious, economic, social, or political prejudice of proposed juror as ground of challenge on voir dire in civil case. 72 A.L.R.2d 905; 95 A.L.R.3d 172.

Juror’s previous knowledge of facts of civil case as disqualification. 73 A.L.R.2d 1312.

Bias, prejudice, or conduct of individual member or members of jury panel as ground for challenge to array or to entire panel. 76 A.L.R.2d 678.

Propriety of inquiry on voir dire as to juror’s attitude towards amount of damages asked. 82 A.L.R.2d 1420.

Juror’s relationship to witness in civil case as ground of disqualification or for reversal or new trial. 85 A.L.R.2d 851.

Counsel’s use on voir dire examination in relation to damages in personal injury or wrongful death case of blackboard, chart, diagram, or placard not introduced into evidence. 86 A.L.R.2d 241.

Voir dire inquiry, in personal injury or death case, as to opinion formed by prospective jurors through acquaintance with literature dealing with amounts of verdicts. 89 A.L.R.2d 1177.

Confusion of name or identity in examining juror in civil case as affecting verdict. 89 A.L.R.2d 1242.

Propriety and effect of asking prospective jurors hypothetical questions, on voir dire, as to how they would decide issues of case. 99 A.L.R.2d 7.

Witnesses, right to interrogate juror on voir dire as to prejudice for or against particular class of witnesses. 99 A.L.R.2d 7.

Use of intoxicating liquor by jurors: civil cases. 6 A.L.R.3d 934.

Social or business relationship between proposed juror and nonparty witness as affecting former’s qualification as juror. 11 A.L.R.3d 859.

Claustrophobia or other neurosis of juror as subject of inquiry on voir dire or of disqualification of juror. 20 A.L.R.3d 1420.

Beliefs regarding capital punishment as disqualification of juror in capital case — Post-Witherspoon case. 39 A.L.R.3d 550.

Jury: membership in racially biased or prejudiced organization as proper subject of voir dire inquiry or ground for challenge. 63 A.L.R.3d 1052.

Racial or ethnic prejudice of prospective jurors as proper subject of inquiry or grounds of challenge on voir dire in state criminal case. 94 A.L.R.3d 15.

Religious belief, affiliation, or prejudice of prospective juror as proper subject of inquiry or ground for challenge on voir dire. 95 A.L.R.3d 172.

Effect of juror’s false or erroneous answer on voir dire in personal injury or death action as to previous claims or actions for damages by himself or his family. 38 A.L.R.4th 267.

Impaneling or selection of jury in accused’s absence. 39 A.L.R.4th 429.

Professional or business relations between proposed juror and attorney as ground for challenge for cause. 52 A.L.R.4th 964.

Effect of juror’s false or erroneous answer on vior dire regarding previous claims or actions against himself or his family. 66 A.L.R.4th 509.

Use of peremptory challenges to exclude ethnic and racial groups, other than black Americans, from criminal jury — post-Batson state cases, 20 A.L.R.5th 398.

Use of peremptory challenges to exclude Caucasian persons, as a racial group, from criminal jury — post-Batson state cases, 47 A.L.R.5th 259.

Prejudicial Effect of Juror’s Inability to Comprehend English, 117 A.L.R.5th 1.

Adoption and Application of “Tainted” Approach or “Dual Motivation” Analysis in Determining Whether Existence of Single Discriminatory Reason for Peremptory Strike Results in Automatic Batson Violation When Neutral Reasons Also Have Been Articulated, 15 A.L.R.6th 319.

Validity, Construction, and Application of Right of Defendant in State Criminal Proceeding to Jury Composed Solely of United States Citizens, 36 A.L.R.6th 189.

Judicial Removal for Cause and Peremptory Strike Validity Under Batson Against Jurors Based upon Viewing Police Procedural Programs, Live Television Trials, Reality Legal Television, or Other Crime and Legal Based Television Programs, 84 A.L.R.6th 229.

Voir dire examination of prospective jurors under rule 24(a) of federal rules of criminal procedure. 28 A.L.R. Fed. 26.

Examination and challenge of federal case jurors on basis of attitudes toward homosexuality. 85 A.L.R. Fed. 864.

29A.300. Oath to petit jury.

The court shall swear the petit jurors using substantially the following oath: “Do you swear or affirm that you will impartially try the case between the parties and give a true verdict according to the evidence and the law, unless dismissed by the court?”.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 41, effective January 2, 1978; 1982, ch. 449, § 12, effective October 1, 1982.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Oath to Petit Jury, Form 11.06.

ALR

Officer, member of petit jury as, within constitutional or statutory provision in relation to oath or affirmation. 118 A.L.R. 1098.

Validity of governmental requirement of oath of allegiance or loyalty as applied to jurors. 18 A.L.R.2d 294.

29A.310. Admonition to jury upon separation — View of property or place.

  1. If the jury is permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with, nor allow themselves to be addressed by, any other person on any subject of the trial; and that, during the trial, it is their duty not to form or express an opinion thereon, until the case is finally submitted to them.
  2. No officer, party, or witness to an action pending, or his attorney or attorneys shall, without leave of the court, converse with the jury or any member thereof upon any subject after they have been sworn.
  3. When necessary the judge may authorize the jury to view the real property which is the subject of the litigation, or the place in which any material fact occurred, or the place in which the offense is charged to have been committed.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 42, effective January 2, 1978.

NOTES TO DECISIONS

1.Admonition.

The right to a fair and impartial jury is fundamental and does not rest on the giving or not giving of the admonition to the jury not to form or express an opinion until the cause is finally submitted to them. (Decided under prior law)Butler v. Commonwealth, Dep't of Highways, 387 S.W.2d 867, 1965 Ky. LEXIS 490 ( Ky. 1965 ).

Where one of the jurors, after the evidence was finished but before the case was submitted to the jury, discussed the insurance aspects of the case with the secretary of one of the attorneys in the case, the admonition to the jury was violated, thus requiring a new trial. (Decided under prior law)Dalby v. Cook, 434 S.W.2d 35, 1968 Ky. LEXIS 221 ( Ky. 1968 ).

2.Separation.

Reliance must be placed upon the integrity of the jurors and where the jury was near other people in a temporary courtroom while they assisted the deputy sheriff in obtaining chairs for the jury room a motion for new trial will not be granted on the ground that there was a separation of the jury while under special guard. (Decided under prior law)Roark v. Commonwealth, 321 S.W.2d 783, 1959 Ky. LEXIS 288 ( Ky. 1959 ).

The word “separation” applies to the entire jury and where they are permitted to go about their business until told to reconvene, therefore, conveyance in more than one automobile to the scene of an accident is not “separation” requiring admonition under the statute since the jury is still functioning as an entity. (Decided under prior law)Davidson v. Moore, 340 S.W.2d 227, 1960 Ky. LEXIS 23 ( Ky. 1960 ).

Under modern practice, jurors are no longer considered prisoners of court, and separation is permitted upon proper admonition by court. (Decided under prior law)Davidson v. Moore, 340 S.W.2d 227, 1960 Ky. LEXIS 23 ( Ky. 1960 ).

3.Conversation.

Where sheriff who participated in the investigation of case talked with a juror after the trial had commenced, but the conversation was “innocent,” trial court did not err in refusing to declare a mistrial. Jones v. Commonwealth, 662 S.W.2d 483, 1983 Ky. App. LEXIS 400 (Ky. Ct. App. 1983).

A new trial was necessary to obviate the error where a juror, despite the numerous and specific admonitions to the contrary, discussed the merits of the appellant’s case with a third party. Doyle v. Marymount Hospital, Inc., 762 S.W.2d 813, 1988 Ky. App. LEXIS 131 (Ky. Ct. App. 1988).

Fact that sheriff had engaged in conversation with three jurors constituted a harmless violation of this section, where the conversations were “innocent” and matters pertaining to the case at hand were not discussed. Talbott v. Commonwealth, 968 S.W.2d 76, 1998 Ky. LEXIS 41 ( Ky. 1998 ).

Juror’s brief conversation and contact with some of the prosecution’s witnesses during trial violated KRS 29A.310(2), but a mistrial was not warranted as there was no record of the brief conversation between the juror and the witnesses; thus, defendant could not meet his burden of showing that there was substantial injustice. Graham v. Commonwealth, 319 S.W.3d 331, 2010 Ky. LEXIS 183 ( Ky. 2010 ).

A conversation held by an officer with a juror after the jury had been sworn, and without the permission of the court, upon a subject not connected with the trial, was not such an irregularity as to require the verdict to be set aside, when it did not appear that the rights of accused were prejudiced. (Decided under prior law)Canter v. Commonwealth, 176 Ky. 360 , 195 S.W. 825, 1917 Ky. LEXIS 69 ( Ky. 1917 ).

Counsel for one of the litigants on trial was not an “officer” but if he did come within the purview of the statute there was no penalty attached for violation of the statute nor any punishment for violation by anyone and conversation of counsel with jurors on subject wholly unrelated to the case was not ground for a new trial. (Decided under prior law)C. V. Hill & Co. v. Hadden's Grocery, 299 Ky. 419 , 185 S.W.2d 681, 1945 Ky. LEXIS 438 ( Ky. 1945 ).

In an action to set aside deeds it was not reversible error because the clerk of the court talked to a couple of the jurors during the trial in contravention of statute prohibiting conversation with jury when the conversation was as to where in the community a corn shredder was located and as to where they would eat lunch since appellant’s rights were not prejudiced by innocent conversation with a juror on a matter foreign to the trial. (Decided under prior law)Owings v. Webb's Ex'r, 304 Ky. 748 , 202 S.W.2d 410, 1947 Ky. LEXIS 718 ( Ky. 1947 ).

Where there was a temporary withdrawal of a juror from the immediate presence of his fellow jurors, or the guard, unless it was shown that something improper occurred the court would not grant a new trial upon that ground. (Decided under prior law)Horton v. Commonwealth, 240 S.W.2d 612, 1951 Ky. LEXIS 996 ( Ky. 1951 ).

Motion for a new trial was denied where after the case was submitted to the jury, a deputy sheriff entered the jury room with the jurors to open a window for ventilation and he swore he did not say anything to any one of the jurors about the case, nor did any of the jurors say anything to him relative to the case. (Decided under prior law)Roark v. Commonwealth, 321 S.W.2d 783, 1959 Ky. LEXIS 288 ( Ky. 1959 ).

Where the jury foreman started to converse with a prosecution witness but was stopped by the jailer before she could do so, there was no violation of the statutes and no error. (Decided under prior law)Wright v. Commonwealth, 455 S.W.2d 561, 1970 Ky. LEXIS 261 ( Ky. 1970 ).

Trial court properly denied a mistrial after a juror had contact with one of the robbery victims during the penalty phase where the conversation was innocent, did not involve any improper exchange of information material to the case, and did not influence the jury’s verdict. Oro-Jimenez v. Commonwealth, 412 S.W.3d 174, 2013 Ky. LEXIS 459 ( Ky. 2013 ).

4.View.

Inspection of premises was proper although they were not in same condition as at time in issue in that appellees had lowered sidewalk, since such was sufficiently explained by the witness to prepare jury for understanding what changes had been made. (Decided under prior law)City of Louisville v. Caron, 90 S.W. 604, 28 Ky. L. Rptr. 844 (1906).

Former section did not limit the right of the court to permit the jury to view objects other than real property or the place in which any material fact occurred, where such view is reasonably necessary for a proper understanding and appreciation of the facts in dispute, even though such objects are not located at the place of the accident. (Decided under prior law)Basham v. Owensboro C. R. Co., 169 Ky. 155 , 183 S.W. 492, 1916 Ky. LEXIS 670 ( Ky. 1916 ).

5.— Discretion of Court.

Trial judge did not abuse his discretion in overruling defendant’s request that jury view the crime scene, where defendant’s rationale for requesting the viewing was to show that lights at crime scene had been dimmer than eyewitnesses testified, a fact which could not be proven or disproven by a jury viewing. Sholler v. Commonwealth, 969 S.W.2d 706, 1998 Ky. LEXIS 98 ( Ky. 1998 ).

In a prosecution for kidnapping and robbery, a jury view of the crime scenes had not been required under KRS 29A.310(3), as witnesses explained the events by use of photographs of the scenes and, by virtue of these visual aids, the jury was adequately apprised of the physical nature of the two (2) scenes. Debruler v. Commonwealth, 231 S.W.3d 752, 2007 Ky. LEXIS 175 ( Ky. 2007 ).

In action for damages by reason of an accident brought about by the unsafe and dangerous condition of a road, court properly exercised its discretion at the trial in refusing to order a view of the premises by the jury, where several months had elapsed since the accident, and the pile of gravel, alleged to have caused the injury, had been spread and condition of the road changed. (Decided under prior law)Henderson & Corydon Gravel-Road Co. v. Cosby, 103 Ky. 182 , 44 S.W. 639, 19 Ky. L. Rptr. 1851 , 1898 Ky. LEXIS 47 ( Ky. 1898 ).

In permitting jury to retire to the courthouse yard to see horse and phaeton in which injuries occurred, the court was not acting under terms of former section in that jury was not taken to see “real property” nor place where any “material fact occurred,” but court acted properly. (Decided under prior law)Board of Internal Improv. v. Moore's Adm'r, 66 S.W. 417, 23 Ky. L. Rptr. 1885 (1902).

Whether or not jury may view premises is a matter largely within discretion of the trial court and its action will not be disturbed unless the discretion has been abused. (Decided under prior law)Todd v. Cooke, 64 S.W. 908, 23 Ky. L. Rptr. 1528 , 1901 Ky. LEXIS 607 (Ky. Ct. App. 1901); Salisbury v. Wellman Electrical Co., 173 Ky. 462 , 191 S.W. 289, 1917 Ky. LEXIS 484 ( Ky. 1917 ).

In absence of affidavit in support of motion that the jury be allowed to view place where intestate was killed, the lower court was doubtlessly unable to see that there was anything in case that required a view by the jury of the place of accident, and no error was committed in overruling motion. (Decided under prior law)Green's Adm'r v. Maysville & B. S. R. Co., 78 S.W. 439, 25 Ky. L. Rptr. 1623 (1904).

Former section does not compel the court to permit jury to view place of injury, but such is matter within discretion of trial court. (Decided under prior law)Cohankus Mfg. Co. v. Rogers' Guardian, 96 S.W. 437, 29 Ky. L. Rptr. 747 (1906).

In action to recover for injuries suffered in saw mill, refusal of trial court to permit jury to view premises was not error, this being in discretion of court. (Decided under prior law)Crane v. T. J. Congleton & Bro., 116 S.W. 341 ( Ky. 1909 ).

In action for injuries from slipping on private driveway, it was not abuse of discretion to permit jury to view premises even though condition was not same as at time of accident since evidence had fully disclosed condition of premises at time of accident and jury must have taken change of condition into consideration in viewing premises. (Decided under prior law)Paust v. Whiteside Bakery Co., 221 Ky. 505 , 299 S.W. 176, 1927 Ky. LEXIS 765 ( Ky. 1927 ).

Viewing of premises by judge was a matter within his discretion in an action for trespass, removal of trees and the quieting of title. (Decided under prior law)Wilxoc v. Lee, 264 Ky. 65 , 94 S.W.2d 294, 1936 Ky. LEXIS 276 ( Ky. 1936 ).

In prosecution for murder it was not an abuse of discretion for court to overrule defendant’s motion to have jury view the premises where the evidence was sufficient to enable the jury to visualize the scene of the shooting without actually viewing it. (Decided under prior law)Mullins v. Commonwealth, 269 S.W.2d 713, 1954 Ky. LEXIS 1012 ( Ky. 1954 ).

A question of allowing a jury to visit the scene of an accident or to inspect property involved in one is a matter which addresses itself to the sound discretion of the trial judge. (Decided under prior law)Reams' Adm'r v. Greer, 314 S.W.2d 511, 1957 Ky. LEXIS 16 ( Ky. 1957 ).

Where a suit for damages to a house was tried on a snowy day with resultant bad driving conditions and the damages had been repaired prior to trial so they were no longer visible, there was no abuse of discretion in the trial court’s refusal to permit a view. (Decided under prior law)Clark v. Fawcett, 450 S.W.2d 528, 1970 Ky. LEXIS 455 ( Ky. 1970 ).

6.— — Abuse.

In action to recover for hand crushed in sandpapering machine, reversible error was committed in the jury having been permitted to view the machine and its location, and further permitted to have machine operated. It is the place and the place only that the court is authorized to send the jury to see. The operation of machinery may, by one who is interested, be made so different before the jury from what it was at the time in controversy as to entirely mislead them in regard to the merits of the case. (Decided under prior law)Meier v. Weikel, 59 S.W. 496, 22 Ky. L. Rptr. 953 , 1900 Ky. LEXIS 248 (Ky. Ct. App. 1900).

Court abused its discretion in overruling defendant’s motion to have the jury view the premises where the evidence showed that at the time of the trial the steps were in the exact same condition that they were at the time the plaintiff was injured and the building was only some two or three blocks from the courthouse. (Decided under prior law)Nash v. Searcy, 256 Ky. 234 , 75 S.W.2d 1052, 1934 Ky. LEXIS 377 ( Ky. 1934 ).

In action where evidence conclusively showed that deceased in running after his cattle negligently ran on to the railroad track 55 feet in front of a train approaching at speed of 35 to 40 miles per hour and which he knew was approaching at a rapid rate, it was not an abuse of discretion to permit the jury to visit the scene of the accident. (Decided under prior law)Browning's Adm'x v. Louisville & N. R. Co., 294 Ky. 317 , 171 S.W.2d 448, 1943 Ky. LEXIS 435 ( Ky. 1943 ).

Allowing a jury to visit the scene of an accident is a matter which addresses itself to the sound discretion of the court and failure to allow jury to visit the scene in an action for wrongful death where photographs of the scene of the accident were filed in evidence and plainly showed the ravine referred to was not an abuse of such discretion. (Decided under prior law)Ford v. McQueary, 239 S.W.2d 486, 1951 Ky. LEXIS 900 ( Ky. 1951 ).

7.— — Accompanied by Judge or Counsel.

It is within discretion of presiding judge whether or not to accompany jury to view premises and was not error for him to refuse to accompany the jury, though requested to do so. (Decided under prior law)Coyle v. Elliott, 189 Ky. 569 , 225 S.W. 489, 1920 Ky. LEXIS 476 ( Ky. 1920 ).

Whether or not the judge or counsel accompany the jury is within the discretion of the court in civil actions. (Decided under prior law)Sims Motor Transp. Lines, Inc. v. Foster, 293 S.W.2d 226, 1956 Ky. LEXIS 59 ( Ky. 1956 ).

In prosecution for voluntary manslaughter arising from death of girl by hit and run driver the defendant’s motion to have the jury view the scene of the accident was properly overruled where there was nothing unusual about the situation and it was fully described by witnesses and shown in photographs. (Decided under prior law)Arthur v. Commonwealth, 307 S.W.2d 182, 1957 Ky. LEXIS 77 ( Ky. 1957 ).

8.— Criminal Action.

In a criminal case the accused, counsel for each side and the judge must accompany the jury whenever they are taken to the place where the crime is charged to have been committed, or in which any other material fact occurred. (Decided under prior law)Sims Motor Transp. Lines, Inc. v. Foster, 293 S.W.2d 226, 1956 Ky. LEXIS 59 ( Ky. 1956 ).

9.— Time.

Trial court may permit jury to view scene of accident even after they had gone to jury room to consider their verdict. (Decided under prior law)Louisville, N. A. & C. R. Co. v. Schick, 94 Ky. 191 , 21 S.W. 1036, 14 Ky. L. Rptr. 833 , 1893 Ky. LEXIS 29 ( Ky. 1893 ).

The court is unlimited as to the time of allowing of the view; for as former section contains no limitation as to time, the court has the right to order the view at any time during the investigation of the case by the jury. (Decided under prior law)Branch v. Whitaker, 294 S.W.2d 948, 1956 Ky. LEXIS 154 ( Ky. 1956 ), overruled, Duncan v. Wiseman Baking Co., 357 S.W.2d 694, 1961 Ky. LEXIS 27 ( Ky. 1961 ).

10.— Communication During.

It is misconduct amounting to reversible error for the sheriff, who conducted the jury to view the premises, to instruct defendant’s employe, in absence of plaintiff or her counsel, to put on steam with certain force, so as to give the jury a practical exhibition of the operation of defendant’s power house. (Decided under prior law)Hughes v. General Electric Light & Power Co., 107 Ky. 485 , 54 S.W. 723, 21 Ky. L. Rptr. 1202 , 1900 Ky. LEXIS 120 ( Ky. 1900 ).

In an automobile collision case, where the defendant’s truck driver was permitted, at the scene of the accident, to state to the jury the place where he had started to pass another truck and the place where he again got back to his side of the road, this coupled with the trial court’s remark to the jury at the end of the argument that they had seen defendant’s driver point out the scene of the accident and that they, the jury, should not let the arguments mislead them was prejudicial to the rights of the plaintiff. (Decided under prior law)Martin v. Tipton, 261 S.W.2d 809, 1953 Ky. LEXIS 1061 ( Ky. 1953 ).

Where after the jury returned from the scene of the accident counsel moved to discharge the jury and continue the case alleging one of the members made motions or pointed at various parts of the landscape with a cane, the motion to discharge the jury and continue the case was properly denied since if there was a communication it was not prejudicial. (Decided under prior law)Davidson v. Moore, 340 S.W.2d 227, 1960 Ky. LEXIS 23 ( Ky. 1960 ).

It was prejudicial error for the trial court to permit the sheriff in effect to supplement his testimony during the course of the view. (Decided under prior law)Barnett v. Commonwealth, 403 S.W.2d 40, 1966 Ky. LEXIS 323 ( Ky. 1966 ).

11.Inspection by Judge.

In action heard by judge without a jury, seeking recovery for damages for injury to land caused by water from a railroad culvert, inspection of premises by the judge was permissible to enable him to understand and apply the evidence. (Decided under prior law)Fitzhugh v. Louisville & N. R. Co., 300 Ky. 509 , 189 S.W.2d 592, 1945 Ky. LEXIS 566 ( Ky. 1945 ).

Cited:

Deemer v. Finger, 817 S.W.2d 435, 1991 Ky. LEXIS 132 ( Ky. 1990 ).

Research References and Practice Aids

ALR

Communicating with grand jury as contempt. 29 A.L.R. 489.

Separation of jury, constitutionality of statute permitting. 34 A.L.R. 1128; 79 A.L.R. 824; 31 A.L.R.2d 1088.

Shadowing, or tampering or communicating with jurors as contempt. 63 A.L.R. 1269.

Prejudicial effect, in criminal case, of communication between court officials or attendants and jurors. 38 A.L.R.3d 1012; 35 A.L.R.4th 890.

Contact or communication between juror and party or counsel during trial of civil case as ground for mistrial, new trial, or reversal. 62 A.L.R.2d 298.

Evidentiary effect of view by jury in condemnation proceedings. 1 A.L.R.3d 1397.

Prejudicial effect in criminal case of communications between witnesses and jurors. 9 A.L.R.3d 1275.

Prejudicial effect of unauthorized view by jury in civil case of scene of accident or premises in question. 11 A.L.R.3d 918.

Presence of unauthorized persons during state grand jury proceedings as affecting indictment. 23 A.L.R.4th 397; 68 A.L.R. Fed. 798.

Postretirement out-of-court communications between jurors and trial judge as grounds for new trial or reversal in criminal case. 43 A.L.R.4th 410.

Propriety of juror’s tests or experiments in jury room, 31 A.L.R.4th 566.

Prejudicial effect, in civil case, of communications between court officials or attendants and jurors, 31 A.L.R.5th 572.

Prejudicial effect, in civil case, of communications between judges and jurors, 33 A.L.R.5th 205.

Propriety of Audio or Video Playback of Testimony or Statement to Jury, 65 A.L.R.6th 537.

Propriety of Juror’s Tests or Experiments Outside of Court or Jury Room, 77 A.L.R.6th 251.

29A.320. Duty of jury and officer after submission — Causes for discharge of jury — Procedure for rendering verdict.

  1. When the case is finally submitted to the jury, they shall retire for deliberation. When they retire, they shall be kept together in some convenient place, under the charge of an officer, until they agree upon a verdict or are discharged by the court, subject to the Supreme Court rules permitting them to separate temporarily at night and for their meals. The officer having them under his charge shall not allow any communications to be made to them, nor make any himself, except to ask them if they have agreed upon their verdict, unless by order of the court; and he shall not, before their verdict is rendered, communicate to any person the state of their deliberations, or the verdict agreed upon.
    1. The jury may be discharged by the court on account of the sickness of a juror, or other accident, calamity or circumstance requiring their discharge; or, by consent of both parties; or, after they have been kept together until it satisfactorily appears that there is no probability of their agreeing. (2) (a) The jury may be discharged by the court on account of the sickness of a juror, or other accident, calamity or circumstance requiring their discharge; or, by consent of both parties; or, after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.
    2. Cases in which the jury are discharged without making a verdict shall be tried again at such time as the court may direct.
  2. The procedure for rendering the verdict shall be:
    1. When the jury have agreed on their verdict, the verdict shall be written and signed by the foreman.
    2. When a verdict is rendered by less than the whole jury, it shall be signed by all the jurors who agree to it.
    3. The foreman shall hand the verdict to the judge who shall read the verdict and then make inquiry of the jury as to whether it is their verdict.
    4. When the verdict is announced either party may require that the jury be polled, which is done by the judge asking each juror if it is his verdict.
    5. If more than the number of jurors required by KRS 29A.280 , as appropriate to the type of case being tried, answers in the negative, the jury must be sent out for further deliberation.
    6. If no disagreement is expressed or, in an appropriate case, an insufficient number disagree, the verdict is complete and the jury shall be discharged from the case.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 43, effective January 2, 1978.

NOTES TO DECISIONS

1.Separation.

In instances where there was a temporary withdrawal of a juror from the immediate presence of his fellow jurors, or the guard, unless it had been shown that something improper occurred, the court would not have granted a new trial upon that ground. Horton v. Commonwealth, 240 S.W.2d 612, 1951 Ky. LEXIS 996 ( Ky. 1951 ).

Where in a murder prosecution six men tentatively accepted for jury service, but subject to challenge, under guard visited the home of a great-aunt of deceased and one of them who was later accepted as a juror, in the absence of the guard and the other prospective jurors, was permitted to go into her kitchen and talk with her, there was no cause for reversal of murder conviction of accused on ground of misconduct or separation of jury since it is only after jurors are accepted that they are not to be permitted to separate. Horton v. Commonwealth, 240 S.W.2d 612, 1951 Ky. LEXIS 996 ( Ky. 1951 ).

Fact that court permitted the jury to go to the place of the accident in three automobiles accompanied by an officer of the sheriff’s department in one of the cars was not “separation” and was not reversible error in absence of any showing that the jury was tampered with or that an outsider attempted to communicate with them. Branch v. Whitaker, 294 S.W.2d 948, 1956 Ky. LEXIS 154 ( Ky. 1956 ), overruled, Duncan v. Wiseman Baking Co., 357 S.W.2d 694, 1961 Ky. LEXIS 27 ( Ky. 1961 ).

When former section spoke of “separation” it did not demand that the jury remain in one tight, compact body, but simply prohibited the jury members from completely abandoning their appointed task as a body. Branch v. Whitaker, 294 S.W.2d 948, 1956 Ky. LEXIS 154 ( Ky. 1956 ), overruled, Duncan v. Wiseman Baking Co., 357 S.W.2d 694, 1961 Ky. LEXIS 27 ( Ky. 1961 ).

2.Communication With Jury.

Where jury foreman merely stepped outside the jury room a few feet after the case had been submitted and asked a deputy sheriff who had the jury in charge to inquire of the judge whether the defendant could be given a sentence of less than life under one of the instructions there was no actual separation under the statutes and in the absence of showing it was prejudicial to defendant it was not ground for reversal as an improper separation of the jury. Lewis v. Commonwealth, 318 S.W.2d 857, 1958 Ky. LEXIS 151 ( Ky. 1958 ).

Where, in response to a request by the jury, the bailiff told them they were not entitled to certain depositions, he clearly exceeded his authority because the request should have been immediately conveyed to the trial judge; such improper conduct by the bailiff warranted application of the “appearance of evil” exception to the rule that a jury cannot impeach its own verdict. Young v. State Farm Mut. Auto. Ins. Co., 975 S.W.2d 98, 1998 Ky. LEXIS 122 ( Ky. 1998 ).

3.Request for Information.

Where the jury requested that the testimony of certain witnesses be read and where the court reporter read the testimony to the point where the jury indicated that it had heard all that was necessary, there was no duty on the part of the trial judge to require the jury to hear the cross-examination of such witnesses. Johnson v. Commonwealth, 497 S.W.2d 699, 1973 Ky. LEXIS 358 ( Ky. 1973 ).

Where, after jury had retired, one of them returned, asked for important deposition in which there were several questions and answers to which an objection had been sustained, and the trial court over the objection of defendant, permitted the jury to take that deposition to their room and keep it during deliberation on verdict, judgment must be reversed. Louisville, H. & S. L. R. Co. v. Morgan, 110 Ky. 740 , 62 S.W. 736, 23 Ky. L. Rptr. 121 , 1901 Ky. LEXIS 132 ( Ky. 1901 ).

4.Discretion of Court.

There was no abuse of discretion, in action to enforce compromise agreement, in permitting jury to take to jury room letters forming part of agreement. Williams v. Watson, 207 Ky. 256 , 268 S.W. 1067, 1925 Ky. LEXIS 69 ( Ky. 1925 ).

Trial judge has a broad discretion in allowing jury to take papers introduced in evidence, models and pleadings to the jury room. Williams v. Watson, 207 Ky. 256 , 268 S.W. 1067, 1925 Ky. LEXIS 69 ( Ky. 1925 ).

In action by owners to recover from carrier for property lost in transit by fire, trial court did not err in permitting jury to take to jury room a list of articles destroyed where appellant’s counsel was present, witnessed its delivery and made no objection. A. Arnold & Son Transfer & Storage Co. v. Weisiger, 224 Ky. 659 , 6 S.W.2d 1084, 1928 Ky. LEXIS 658 ( Ky. 1928 ).

Where the instructions made it clear that the plaintiff could recover only upon a finding of the defendant’s negligence, the court was not required to enlarge upon the instructions in an attempt to answer the jury’s question. Kentucky & I. T. R. Co. v. Mann, 312 S.W.2d 451, 1958 Ky. LEXIS 224 ( Ky. 1958 ).

5.Procedure for Rendering Verdict.

In action where jury rendered written verdict for “1,800” specifying neither dollars and cents, and where the clerk read verdict as $1800, the jury was asked if that was their verdict and answered in the affirmative, such verdict was not contrary to requirements of former section providing procedure for rendering verdict. Kentucky Distilleries & Warehouse Co. v. Leonard, 87 S.W. 809, 27 Ky. L. Rptr. 1055 (1905).

6.Polling.

Failure to poll the jury waives irregularities in a jury verdict but does not waive a void jury verdict. Baxter v. Tankersley, 416 S.W.2d 737, 1967 Ky. LEXIS 283 ( Ky. 1967 ), overruled, Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503, 1989 Ky. LEXIS 84 ( Ky. 1989 ).

The trial court clearly was authorized to send the jury back for further deliberations after the initial jury poll revealed the fifth juror’s ambiguous opinion and the second poll of the entire jury revealed no lack of unanimity. To establish an absence of unanimity, upon being polled, a juror must connote that the verdict was given involuntarily or was forced upon him or against his will. Hart v. Commonwealth, 768 S.W.2d 552, 1989 Ky. App. LEXIS 170 (Ky. Ct. App. 1989).

7.Void Verdict.

A verdict is void which is so uncertain or indefinite as not to base a legal judgment thereon or that is inconsistent and illogical. Baxter v. Tankersley, 416 S.W.2d 737, 1967 Ky. LEXIS 283 ( Ky. 1967 ), overruled, Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503, 1989 Ky. LEXIS 84 ( Ky. 1989 ).

8.Further Deliberation.

In a case involving trafficking in a controlled substance, a trial court acted in compliance with this section when it sent the jury back for further deliberations since there was no evidence that the initial verdict was involuntary or that an indecisive juror had been coerced in any way. King v. Commonwealth, 465 S.W.3d 38, 2015 Ky. App. LEXIS 99 (Ky. Ct. App. 2015).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Verdicts, § 56.00.

ALR

Former jeopardy where jury discharged because of relationship of juror. 38 A.L.R. 711.

Amendment of verdict, right to reassemble jury for purpose of, after discharge, as affected by fact that verdict has or has not been recorded. 66 A.L.R. 547.

Separation of jurors. 125 A.L.R. 1278.

Separation of jury in criminal case after submission. 21 A.L.R.2d 1088; 72 A.L.R.3d 100; 72 A.L.R.3d 248.

Separation of jury in civil case after submission. 77 A.L.R.2d 1086.

Proper procedure upon illness or other disability of civil case juror. 99 A.L.R.2d 684.

Competency of juror’s statement or affidavit to show that verdict in civil case was not correctly recorded. 18 A.L.R.3d 1132.

Separation of jury in criminal case during trial—modern cases. 72 A.L.R.3d 131.

29A.330. Jury fee.

  1. The jury fee for a civil trial in Circuit Court and District Court shall be set in accordance with KRS 48.195 .
  2. The jury fee shall be assessed as costs against the unsuccessful party upon judgment or dismissal of the action.
  3. If two (2) or more cases are consolidated by order of the court and tried together, the clerk shall collect only one (1) jury fee.
  4. If a plaintiff sues in forma pauperis, he or she shall not be liable for a jury fee.
  5. If a request for a jury trial is withdrawn or the case is disposed of not less than two (2) court days prior to the date set for trial the clerk shall not assess the jury fee.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 44, effective January 2, 1978; 2002, ch. 252, § 9, effective July 15, 2002.

NOTES TO DECISIONS

1.Purpose.

Former section that provided for jury fees was purely a revenue measure and intended to contribute to the expense which the state undergoes in maintaining the jury system. (Decided under prior law)Louisville R. Co. v. Dugan, 179 Ky. 825 , 201 S.W. 324, 1918 Ky. LEXIS 291 ( Ky. 1918 ).

2.Fee for Each Case.

Former section provided for a jury fee of $4.00 in each case tried by a jury and if all the defendants in a cause of action had separate trials this fee would have been assessed against each defendant. (Decided under prior law)Bosworth v. Lay, 150 Ky. 638 , 150 S.W. 809, 1912 Ky. LEXIS 951 ( Ky. 1912 ).

3.Liability for Fee.

The successful party litigant was liable in the first instance for the jury fee of $4.00, but this fee would have been taxed against the unsuccessful party at the termination of the litigation. (Decided under prior law)Louisville R. Co. v. Dugan, 179 Ky. 825 , 201 S.W. 324, 1918 Ky. LEXIS 291 ( Ky. 1918 ).

The successful party in an action cannot avoid responsibility for the jury fee by failing to execute on the judgment. (Decided under prior law)Louisville R. Co. v. Dugan, 179 Ky. 825 , 201 S.W. 324, 1918 Ky. LEXIS 291 ( Ky. 1918 ).

Research References and Practice Aids

ALR

Validity of law or rule requiring state court party who requests jury trial in civil case to pay costs associated with jury. 68 A.L.R.4th 343.

29A.990. Penalties.

  1. Any employer who violates subsection (1) or (2) of KRS 29A.160 is guilty of a Class B misdemeanor.
  2. Any willful violation of KRS 29A.010 to 29A.330 for which a penalty is not otherwise provided by statute shall be punishable as a Class A misdemeanor.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, §§ 27(2), 45; 2002, ch. 252, § 10, effective July 15, 2002.

Compiler’s Notes.

Subsection (1) of this section was enacted as § 27(2) of Acts 1976 (Ex. Sess.), ch. 22 and became effective March 19, 1977; subsection (2) was enacted as § 45 of Acts 1976 (Ex. Sess.), ch. 22 and became effective January 2, 1978.

CHAPTER 30 Attorneys at Law [Repealed]

30.010. Practice without license forbidden. [Repealed.]

Compiler’s Notes.

This sections (98-6, 98a-1) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rules 2.000 et seq. and 3.010 et seq.

30.020. Admission of foreign attorneys. [Repealed.]

Compiler’s Notes.

This section (98a-9) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rules 2.000 et seq. and 3.010 et seq.

30.030. Regulations as to admission to practice law. [Repealed.]

Compiler’s Notes.

This section (98a-2, 98a-5: amend. Acts 1942, ch. 124, §§ 1, 2; 1942, ch. 153, § 1; 1946, ch. 207, § 1) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rules 2.000 et seq. and 3.010 et seq.

30.040. Board of examiners. [Repealed.]

Compiler’s Notes.

This section (98a-3, 98a-4) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rules 2.000 et seq. and 3.010 et seq.

30.050. Meetings and proceedings of board of bar examiners. [Repealed.]

Compiler’s Notes.

This section (98a-6: amend. Acts 1946, ch. 207, § 2; 1958, ch. 120, § 2) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rules 2.000 et seq. and 3.010 et seq.

30.060. Disposition of examination and license fees — Compensation and expenses of board of bar examiners. [Repealed.]

Compiler’s Notes.

This section (98a-7: amend. Acts 1946, ch. 207, § 3) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rules 2.000 et seq. and 3.010 et seq.

30.065. Veterans. [Repealed.]

Compiler’s Notes.

This section (Acts 1958, ch. 120, § 1) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rules 2.000 et seq. and 3.010 et seq.

30.070. Bar examination, how conducted. [Repealed.]

Compiler’s Notes.

This section (98a-5) was repealed by Acts 1946, ch. 207, § 4. For present law see SCR, Rule 2.000 et seq.

30.080. License, granting and revocation; copies; clerk’s fees. [Repealed.]

Compiler’s Notes.

This section (98a-5, 98a-8) was repealed by Acts 1946, ch. 207, § 4. For present law see SCR, Rule 2.000 et seq.

30.090. Nonresident attorneys, temporary privilege of. [Repealed.]

Compiler’s Notes.

This section (98a-11) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rule 3.030 .

30.100. Persons convicted of felony not to practice. [Repealed.]

Compiler’s Notes.

This section (97) was repealed by Acts 1948, ch. 55.

30.110. Roster of attorneys in certain courts. [Repealed.]

Compiler’s Notes.

This section (98-8) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rule 3.010 et seq.

30.120. Officers who shall not practice. [Repealed.]

Compiler’s Notes.

This section (110: amend. Acts 1952, ch. 186, § 1) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rule 3.010 et seq.

30.130. Law partnerships with public officers. [Repealed.]

Compiler’s Notes.

This section (108) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rule 3.010 et seq.

30.140. Law partner of public officer, when not to practice. [Repealed.]

Compiler’s Notes.

This section (108, 109) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rule 3.010 et seq.

30.150. County judge, when not to practice. [Repealed.]

Compiler’s Notes.

This section (1069) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rule 3.010 et seq.

30.160. Law office, where not to be kept. [Repealed.]

Compiler’s Notes.

This section (106, 1083a-10) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rule 3.010 et seq.

30.170. Court rules governing practice of law and state bar. [Repealed.]

Compiler’s Notes.

This section (101-1, 101-2: amend. Acts 1952, ch. 213, § 1; 1956, ch. 116, § 1; 1962, ch. 5, § 1) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rule 3.010 et seq.

30.180. Liability of attorney for neglect or lack of skill. [Repealed.]

Compiler’s Notes.

This section (102, 103) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rule 3.010 et seq.

30.190. Liability of attorney for not paying over money collected. [Repealed.]

Compiler’s Notes.

This section (104, 105) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rule 3.010 et seq.

30.200. Fee of attorney for plaintiff — Lien for — Effect of compromise. [Repealed.]

Compiler’s Notes.

This section (107) was repealed by Acts 1976, ch. 58, § 12. For present law see SCR, Rule 3.010 et seq.

30.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (98-6, 106, 108, 111, 1069) was repealed by Acts 1976, ch. 58, § 12.

CHAPTER 30A Court Personnel

Circuit Clerks

30A.010. Clerk defined — Duties coextensive with Commonwealth — Subject to administrative control of Chief Justice.

  1. For the purpose of KRS 30A.010 to 30A.190 , “clerk” means the Circuit Court clerk serving in his capacity as clerk of both the Circuit Court and the District Court.
  2. As personnel within the Court of Justice, clerks are state officers whose duties are coextensive with the Commonwealth, and who are subject to the administrative control of the Chief Justice.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 1, effective January 2, 1978.

NOTES TO DECISIONS

1.Issuance of Criminal Warrants.

Circuit clerks are not at all subject to the supervision of prosecutors, but of the judiciary, and the fact that a warrant must be prepared by the Commonwealth’s or county attorney has nothing to do with the clerk’s exercise of independent judgment in deciding whether probable cause has been shown to justify issuance of warrant; furthermore the determination of probable cause is made not from the warrant but from the supporting affidavit or affidavits. Commonwealth v. Bertram, 596 S.W.2d 379, 1980 Ky. App. LEXIS 304 (Ky. Ct. App. 1980).

Opinions of Attorney General.

The District Court clerk should prepare the warrant or summons in actions for forcible entry or detainer. OAG 78-212 .

Since a deputy Circuit Court clerk is a state officer and a county treasurer is a county officer, the same person cannot, at the same time, fill both offices as they are incompatible with each other. OAG 80-608 .

Since Property Valuation Administrators (PVAs) and their deputies and employees are specifically authorized to participate in the public employees deferred compensation system and both PVAs and Circuit Court clerks are state officers, they meet the definition of “employee” set out in KRS 18.510(1) (now KRS 18A.230 ), and so do their deputies and employees; therefore, they may all participate in the public employees deferred compensation plan. OAG 80-246 .

The authority to determine job assignments and work shifts relating to deputy circuit clerks is under the immediate authority of the circuit clerk, subject to any applicable rules or requirements coming from the Supreme Court, or the chief justice as the executive head of the Court of Justice, or the administrative office of the courts with the approval of the Supreme Court. OAG 80-646 .

The positions of deputy circuit clerk, a state officer under this section, trial commissioner of the county District Court, a state officer under KRS 24A.100 , are compatible with one another since neither Ky. Const., § 165, nor KRS 61.080 prohibits a person from holding two state offices at the same time; however, they may be incompatible under the doctrine of practical or common law. OAG 81-124 .

There is no constitutional problem with KRS 172.110(1), which makes the circuit clerk the ex officio law librarian, except that the county law librarian function must not interfere with the clerk’s court functions as envisioned in Const., § 114 and this section; the circuit clerk is entitled to receive a salary from the county treasury, as a properly budgeted item under KRS Ch. 68, for actually serving as the ex officio librarian of the county law library and the salary provisions of KRS 64.055 (now repealed) relate solely to the work of the clerk as Circuit and District Court clerk. OAG 82-177 .

The circuit clerk is a state officer as provided by this section and so are his deputy clerks, whether employed part-time or full-time, as the deputy clerk is given the same powers and duties of the clerk under KRS 30A.050 (2) and must take the oath of office and execute bonds pursuant to KRS 30A.020 and 30A.030 , in spite of the fact that subsection (2) of KRS 30A.050 indicates that deputies, along with other employees, are employees of the state. OAG 82-351 .

Research References and Practice Aids

Cross-References.

Adoption cases, circuit clerks to set up separate docket and order book, and files and records to be kept confidential, KRS 199.570 .

Alcoholic Beverage Control Board, duties of Franklin circuit clerk upon appeal from, KRS 243.560 .

Attachment, order for made by clerk, KRS 425.307 .

Circuit clerk, election and term of office, Const., § 97.

Eminent domain proceedings, duties of clerks in, KRS 416.580 , 416.590 .

Costs, what clerk to tax as, KRS 453.050 .

Depository for fees, KRS 64.365 .

Elections, contest of, clerk’s duties as to, KRS 120.055 , 120.165 , 120.250 .

Execution of death sentence, clerk to make return of, KRS 431.260 .

Execution of process, clerk to keep account of fees paid for, KRS 64.080 .

Fees of clerks, Const., § 106; KRS 64.005 .

Games and fish, clerks to issue licenses and report convictions, KRS 150.140 , 150.150 , 150.195 .

Judge, clerk to file notice of removal of, KRS 14.060 .

Juries, clerk’s duties as to, KRS Ch. 29A.

Land acquired by state, clerks to forward copies of judgment and record to secretary of state, KRS 56.050 , 56.060 .

Law books to which clerks are entitled, custody of, KRS 57.300 , 57.310 , 57.330 .

Librarian of county law library, circuit clerk is, duties, KRS 172.110 to 172.160 .

Licensing of vehicles and operators, clerk’s duties in, KRS Ch. 186.

Liens, clerk’s duties in establishment and enforcement of statutory liens, KRS 376.080 , 376.100 , 376.110 , 376.230 .

Motor carriers, KRS Ch. 281.

Motor vehicles, accidents, clerk to report to justice cabinet criminal convictions and unpaid civil judgments arising out of, KRS 187.400 .

Notary public, clerk to approve application of, KRS 423.010 .

Oaths and bonds, KRS Ch. 62.

Perpetuation of evidence concerning land, timber and minerals, circuit clerk’s duties in proceedings for, KRS 422.170 to 422.190 .

Process to be delivered to sheriff by clerk daily, KRS 70.075 .

Qualifications required of clerks, Const., § 100.

Removal of circuit clerks, Const., § 114.

Retirement for circuit clerks, KRS 78.534 .

Salary, circuit clerks, KRS 64.056 , 64.058 .

Subpoenas issued by clerk, RCr 5.06, 7.02.

Successor, clerks to deliver records to, KRS 61.340 .

Vacancies in clerks’ offices, how filled, KRS 63.220 .

Venue, change of, clerk’s duties in relation to, KRS 452.060 , 452.250 , 452.310 .

Will to be recorded by clerk, KRS 394.300 .

Witnesses, clerk to note failure of to attend in felony case, KRS 421.040 .

Kentucky Law Journal.

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Northern Kentucky Law Review.

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

Treatises

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Circuit Clerks, § 13.00.

Petrilli, Kentucky Family Law, Marriage License, § 5.3.

Collateral References.

ALR

Civil service laws as applicable to court clerks. 14 A.L.R. 637.

Clerk of court, refusal or failure of, to comply with direction of court or judge, upon ground of its invalidity or supposed invalidity, as contempt. 119 A.L.R. 1380.

Incompatibility of office of clerk of court and office in the military service. 26 A.L.R. 144; 132 A.L.R. 254; 147 A.L.R. 1419; 148 A.L.R. 1399; 150 A.L.R. 1444.

Court’s power as to removal of clerk. 118 A.L.R. 171.

30A.015. Domestic violence training for circuit clerks and deputy clerks.

  1. The Administrative Office of the Courts, under the direction of the Supreme Court, shall provide initial training courses and, at least once every two (2) years, continuing education courses for circuit clerks and deputy clerks concerning the dynamics of domestic violence, effects of domestic violence on adult and child victims, legal remedies for protection, lethality and risk issues, model protocols for addressing domestic violence, available community resources and victims services, and reporting requirements. The training shall be developed in consultation with legal, victims services, victim advocacy, and mental health professionals with an expertise in domestic violence.
  2. Each clerk and deputy clerk shall successfully complete the training prescribed by the Supreme Court by rule.

History. Enact. Acts 1996, ch. 54, § 11, effective July 15, 1996.

30A.020. Oath of clerk and deputies.

Every clerk and deputy, in addition to the oath prescribed by Section 228 of the Constitution, shall, before entering on the duties of his office, take the following oath in presence of the Circuit Court: “I, _________ , do swear that I will well and truly discharge the duties of the office of _______________________________________ County Circuit Court clerk, according to the best of my skill and judgment, making the due entries and records of all orders, judgments, decrees, opinions and proceedings of the court, and carefully filing and preserving in my office all books and papers which come to my possession by virtue of my office; and that I will not knowingly or willingly commit any malfeasance of office, and will faithfully execute the duties of my office without favor, affection or partiality, so help me God.” The fact that the oath has been administered shall be entered on the record of the Circuit Court.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 2, effective January 2, 1978.

NOTES TO DECISIONS

1.Incompatible Offices.

A deputy circuit clerk is clearly a “deputy (state) officer” and is, thus, precluded from simultaneously serving as an officer of a city. Court of Justice v. Oney, 34 S.W.3d 814, 2000 Ky. App. LEXIS 96 (Ky. Ct. App. 2000).

2.Clerk’s duties.

Where the trial court clerk filed the creditor’s notice of appeal on the day it was received despite the fact that the creditor failed to sign the check for the appellate fee, and the clerk allowed the creditor’s attorney to send the fee late, the clerk did not violate the clerk’s duties under KRS 30A.020 . Norwest Bank Minn., N.A. v. Hurley, 103 S.W.3d 21, 2003 Ky. LEXIS 73 ( Ky. 2003 ).

Opinions of Attorney General.

A deputy circuit clerk who is a candidate for the position of circuit clerk must run on his own private time and avoid the personal involvement of deputies and employees in the clerk’s office, since the deputy clerk has taken an oath under this section to well and truly discharge the duties of the office of circuit clerk. OAG 81-83 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Oath of Clerk and Deputies, Form 10.03.

30A.030. Bond of clerks, deputies, and other personnel.

  1. All clerks, deputy clerks, and other persons employed in the office of the clerk shall be bonded to the Commonwealth for the faithful performance of their duties and for the accounting of all funds which may come into their hands by virtue of their office. They shall be covered by the blanket bond for all elected or appointed state officials.
  2. No other bond shall be required for performance of duty by the clerk, and any statute to the contrary is repealed to the extent of the conflict.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 3, effective January 2, 1978.

NOTES TO DECISIONS

1.Liability of Sureties.

Where clerk filed mortgage improperly so that mortgage was not discovered by attorney using reasonable diligence in examining the title, and subsequent purchaser relied thereon to his detriment, surety on the clerk’s bond was liable for damages sustained. (Decided under prior law)Title Guaranty & Surety Co. v. Commonwealth, 141 Ky. 570 , 133 S.W. 577, 1911 Ky. LEXIS 67 ( Ky. 1911 ).

Surety on circuit clerk’s bond held not liable for costs which clerk collected as matter of convenience and did not pay to sheriff. (Decided under prior law)Davis v. National Surety Co., 237 Ky. 401 , 35 S.W.2d 560, 1931 Ky. LEXIS 617 ( Ky. 1931 ).

Where clerk collected fees after bank was closed, and deposited the fees in an iron safe locked in his office in the courthouse, the clerk and his surety were liable for the theft of the funds, since the clerk did not exercise the extraordinary diligence required of him in protecting the funds. (Decided under prior law)Commonwealth v. Polk, 256 Ky. 100 , 75 S.W.2d 761, 1934 Ky. LEXIS 361 ( Ky. 1934 ).

The official bond of an officer does not cover the obligation to return money illegally received by the officer; therefore in suit by county against Circuit Court clerk to recover sums illegally paid him for acting as librarian was a suit on an implied promise to repay rather than on his official bond, and the five-year statute of limitations applied. (Decided under prior law)Wolfe County v. Smith, 283 Ky. 483 , 141 S.W.2d 874, 1940 Ky. LEXIS 357 ( Ky. 1940 ).

Cited:

Nanny v. Smith, 260 S.W.3d 815, 2008 Ky. LEXIS 183 ( Ky. 2008 ).

Research References and Practice Aids

Cross-References.

Bond must be given by clerks, Const., § 103.

Condemnation proceeding, clerk and sureties liable on bond for moneys received under, KRS 416.630 .

Individual sureties, limitation on bonds, KRS 62.065 .

Premiums on bonds to be paid by the state, when, KRS 62.140 .

Suit and recovery on bond, KRS 62.070 .

ALR

Liability of clerk of court, or his bond, for the defaults and misfeasances of his assistants or deputies. 1 A.L.R. 234; 102 A.L.R. 174; 116 A.L.R. 1064; 71 A.L.R.2d 1140.

Liability of clerk of court, or his bond, for money paid to clerk by virtue of his office. 59 A.L.R. 60.

Liability of clerk of court, county clerk or prothonotary for negligent or wrongful acts of deputies or assistants. 71 A.L.R.2d 1140.

30A.040. Office in each county — Branch offices — Office hours.

Every Circuit Court and every District Court shall have a clerk’s office in each county, and shall have such branch offices within the county as are approved by the Supreme Court. Minimum office hours of the clerk’s offices shall be determined by the Supreme Court.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 4.

30A.050. Number and qualifications of deputy clerks and employees — Power of deputy clerks — Compensation.

  1. The number and qualifications of deputy clerks and other employees in the office of each clerk shall be determined by the Administrative Office of the Courts after consultation with the clerk concerned. All deputies and employees of the clerk’s office shall be employees of the Commonwealth.
  2. Deputy circuit clerks, authorized by and under the direction of the circuit clerk, shall have full power to perform such duties as may be performed by the circuit clerk; and any act of a deputy clerk is entitled to the same faith and credit as that of the clerk.
  3. Deputy clerks and all other employees in the office of the clerk shall be compensated according to the pay schedule established by the Judicial Personnel System.
  4. The clerk may employ and dismiss such deputies and other employees.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 5, effective January 2, 1978.

Opinions of Attorney General.

A deputy Circuit Court clerk has the authority to certify as true copies various Circuit Court documents, such as indictments and warrants for applications for requisitions in extradition matters, where the deputy Circuit Court clerk has been duly authorized and supervised by the circuit clerk to perform such a statutory function. OAG 80-174 .

Although deputies and employees of the circuit clerk’s office are state employees and personnel of the Court of Justice, they are not covered under the state merit system set forth in KRS Chapter 18 (repealed, now see KRS Chapter 18A). OAG 80-608 .

The authority to determine job assignments and work shifts relating to deputy circuit clerks is under the immediate authority of the circuit clerk, subject to any applicable rules or requirements coming from the Supreme Court, or the chief justice as the executive head of the Court of Justice, or the administrative office of the courts with the approval of the Supreme Court. OAG 80-646 .

The circuit clerk is a state officer as provided by KRS 30A.010 and so are his deputy clerks, whether employed part-time or full-time, as the deputy clerk is given the same powers and duties of the clerk under subsection (2) of this section and must take the oath of office and execute bond pursuant to KRS 30A.020 and 30A.030 , in spite of the fact that subsection (2) of this section indicates that deputies, along with other employees, are employees of the state. OAG 82-351 .

Research References and Practice Aids

Kentucky Law Journal.

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

30A.055. Automated warrant system. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 606, § 34, effective July 15, 1998) was repealed by Acts 2007, ch. 85, § 334, effective June 26, 2007.

30A.060. Clerk to prepare bonds and to refuse insufficient surety — Authorization for preparation and acceptance of bail bonds by other public officers or employees.

  1. Each clerk shall prepare in a proper manner every bond to be taken by or given before him or his court.
  2. The clerk shall refuse any surety offered in a bond to be taken by him who is, in his opinion, insufficient.
  3. The clerk shall prepare bail bonds as required by subsection (1) of this section; however, additional public officials and their employees shall be authorized by rule or order of the Chief Circuit Judge to prepare and accept bail bonds to be taken by the clerk or for his court. Such bail bonds shall have the same validity as if prepared or taken by the clerk.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 6; 1992, ch. 89, § 3, effective July 14, 1992; 1998, ch. 367, § 1, effective July 15, 1998.

NOTES TO DECISIONS

Cited:

Fryman v. Harrison, 896 S.W.2d 908, 1995 Ky. LEXIS 58 ( Ky. 1995 ).

Opinions of Attorney General.

The jailer, taking a bond under direction of the court, is really an officer of the court, and the costs or fees therefor accrue to the accounts of the circuit clerk’s office, subject to their being sent to the state treasury for credit to the general fund, pursuant to KRS 431.531 . OAG 82-325 .

Where jailer takes a bail bond under subsection (3) of this section or RCr 4.24, since the jailer would be taking the bond, if at all, as a substitution for the court clerk, who is not available, the fee or “cost” set forth in KRS 431.530(3) would govern. OAG 82-325 .

A jailer may be authorized to bail misdemeanants by the Chief Circuit Judge where the clerk is unavailable; he may accept cash bail or the deposit authorized by KRS 431.530 . OAG 84-108 .

A jailer, where authorized to afford bail, must use his sound judgment in releasing a person charged with intoxication or driving while drunk, since the jailer might be subject to tort liability for damages suffered by a member of the public if the prematurely released defendant injures someone. OAG 84-108 .

30A.070. Clerk may administer oaths and take affidavits.

Every clerk may administer oaths, in or out of court, touching any matter in which an oath may be legally administered, and may take any affidavit requested or permitted in the progress of a proceeding in his court.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 7, effective January 2, 1978.

NOTES TO DECISIONS

1.Deputy Clerk.

In an action against a clerk for violation of the Corrupt Practices Act where the clerk’s statements of contributions and expenditures were sworn to before a deputy clerk who signed the oath with the clerk’s name by her as deputy, the oaths were valid as they were not administered by the clerk to himself but were in fact administered by the deputy who was authorized to administer them under KRS 61.035 . (Decided under prior law)Asher v. Sizemore, 261 S.W.2d 665, 1953 Ky. LEXIS 1045 ( Ky. 1953 ).

2.Notary Public.

A notary public as well as a clerk may administer an oath in a criminal proceeding. (Decided under prior law)Bush v. Commonwealth, 198 Ky. 226 , 248 S.W. 522, 1923 Ky. LEXIS 411 ( Ky. 1923 ).

3.Examination Under Oath.

Clerk has no authority to examine under oath a person who is not a competent witness to prove execution of parents’ consent to issuance of marriage license to a person under 21, and therefore such person cannot be indicted for false swearing as to execution of such paper. (Decided under prior law)Commonwealth v. Bradshaw, 210 Ky. 405 , 276 S.W. 124, 1925 Ky. LEXIS 689 ( Ky. 1925 ).

Research References and Practice Aids

Cross-References.

Deputy acting for clerk, KRS 61.035 .

Official oaths, clerks may administer, KRS 62.020 .

Treatises

Treatises

Petrilli, Kentucky Family Law, Marriage License, § 5.3.

Collateral References.

ALR

Relationship of attorney to person taking oath or making acknowledgment as disqualifying official empowered to administer oaths or take acknowledgments. 21 A.L.R.3d 483.

30A.080. Maintenance of records — Removal from county — Transfer by rule or order of Supreme Court.

  1. Every clerk shall maintain all records, files, dockets, and indexes as are prescribed by statute or rule.
  2. All necessary record books and all necessary supplies required by the clerk’s office shall be procured through the Administrative Office of the Courts and paid for by the Court of Justice.
  3. No clerk shall permit the records or papers of his office to be taken out of his office except in case of invasion or insurrection, or other catastrophe, or pursuant to rule or order of court, and then he shall cause them to be returned as soon as the necessity for the removal ceases to exist.
  4. Records may be permanently transferred from the clerk’s office by rule or order of the Supreme Court.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 8, effective January 2, 1978; 1998, ch. 606, § 35, effective July 15, 1998.

NOTES TO DECISIONS

1.In General.

Courts of record speak only through their orders duly entered and signed by the judge in books provided for that purpose. (Decided under prior law)Commonwealth v. Wilson, 280 Ky. 61 , 132 S.W.2d 522, 1939 Ky. LEXIS 59 ( Ky. 1939 ).

2.Control of Records.

The clerk of a court holds its records as custodian of the court, and the court can require its records brought to the courtroom, to the judge of the court, to the office of the master commissioner, or to be withdrawn from the clerk’s office by the city attorney in tax cases. (Decided under prior law)Summers v. Louisville, 140 Ky. 253 , 130 S.W. 1101, 1910 Ky. LEXIS 225 ( Ky. 1910 ).

Court has inherent control of record, and its determination is not subject to defeat by any ministerial act or omission of the clerk, although the only competent evidence of judicial action must usually be found in the record supplied by ministerial act of the clerk. (Decided under prior law)Happy Coal Co. v. Brashear, 263 Ky. 257 , 92 S.W.2d 23, 1935 Ky. LEXIS 799 ( Ky. 1935 ).

3.Presumption of Correct Entry.

Where the record in the record book showed a judgment was entered on August 25th the date of entry is presumed to be correct and must be included in computing the ten days for filing documents in Court of Appeals. (Decided under prior law) Mitchell v. Demunbrun, 300 Ky. 477 , 189 S.W.2d 682, 1945 Ky. LEXIS 580 ( Ky. 1945 ).

4.Compensation for Record-Keeping.

The clerk of the Circuit Court is not entitled to compensation for removing, rearranging or relabeling the records of his office, in the absence of a statute providing compensation for such services. (Decided under prior law)Allin v. Mercer County, 174 Ky. 566 , 192 S.W. 638, 1917 Ky. LEXIS 216 ( Ky. 1917 ).

5.Missing Records.
6.— Appeal Bond.

In absence of plea of fraud or mistake, indorsement by clerk that an appeal bond was executed is conclusive where appeal bond is not found in the record. (Decided under prior law)Commonwealth by State Highway Com. v. McIntire, 249 Ky. 555 , 61 S.W.2d 31, 1933 Ky. LEXIS 564 ( Ky. 1933 ).

Opinions of Attorney General.

Absentee ballots and applications are public records open to public inspection while in the custody of the circuit clerk; however, pursuant to subsection (3) of this section restricting the removal of public records from the circuit clerk’s office, removal may only be gained by court order. OAG 83-476 .

30A.090. Collection of fees or charges.

  1. Unless the plaintiff has established his right to prosecute as a poor person as provided by statute or rule, each clerk shall, when a proceeding is filed in his court, collect the filing fee fixed by law. He shall also collect any charges which have accrued during the progress of the action.
  2. The clerk shall collect all other fees required by law or court rule or order.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 9, effective January 2, 1978.

Opinions of Attorney General.

A clerk is under no affirmative duty to collect the misdemeanor arrest fee payable to city policemen or a sheriff, but where the defendant is convicted and judgment of conviction and costs being entered, the defendant pays the fee to the clerk who pays the fee to the Department of Finance (now Finance Cabinet), then the arresting officer may collect his fee. OAG 79-125 .

30A.100. Assessment of costs.

At the termination of an action, every clerk shall assess the costs of each party and file it with the case. The assessment shall be subject to correction by the court by motion upon notice given.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 10, effective January 2, 1978.

NOTES TO DECISIONS

1.Resolving Costs of Transcript On Appeal.

A controversy between counsel for an appellant and the Circuit Court clerk regarding costs of the transcript on appeal may be resolved by trial court. (Decided under prior law)Gasaway v. Pendergrass, 350 S.W.2d 460, 1961 Ky. LEXIS 94 ( Ky. 1961 ).

30A.110. Payment of jurors and witnesses — Clerk’s liability for advancements — Reports to the Finance and Administration Cabinet — Penalty.

  1. Each clerk shall pay to each juror and to each witness the compensation allowed to him by law, under appropriations provided by the General Assembly and in accordance with procedures governing expenditures from appropriations. The clerk shall take a receipt for each payment made by him showing the date on which payment is made. A canceled check shall be the equivalent of a receipt. For the purpose of providing for such payments, the State Treasurer, on direction of the Finance and Administration Cabinet, shall advance to each clerk two (2) imprest funds: one for the payment of jurors which shall be sufficient for the period of service of each grand or petit jury panel, or both, but not to exceed a period of sixty (60) days; the other for the payment of Commonwealth witnesses, which shall be sufficient for a period of time not to exceed sixty (60) days.
  2. Each clerk shall be liable on the clerk’s official bond to account for the full amounts advanced to the clerk under this section. Each clerk shall file a separate statement concerning each imprest fund with the Finance and Administration Cabinet, in such form as the cabinet prescribes, showing the amounts disbursed since the last preceding report, accompanied by a copy of the canceled check, or a receipt for each amount disbursed signed by the person to whom it was paid, and showing the date of the payment and such other information as the cabinet prescribes. These reports shall be forwarded to the cabinet within thirty (30) days after the end of the period for which funds are advanced.
  3. Any clerk who fails to comply with the provisions of subsection (2) of this section shall be required to pay a penalty of five percent (5%) of all funds not so paid or accounted for.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 11, effective January 2, 1978; 2002, ch. 252, § 11, effective July 15, 2002.

NOTES TO DECISIONS

1.Illegal Payment of Jury Claims.

Circuit Judge, in making orders with reference to the payment of jurors, may be restrained by prohibition from paying illegal jury claims. The fact that there may be a right of appeal from an order directing the payment of a jury claim does not create such an adequate remedy at law as would prevent prohibition, where there is no statutory method of preventing the clerk from paying the claims pending appeal. (Decided under prior law)Meredith v. Sampson, 277 Ky. 263 , 126 S.W.2d 124, 1939 Ky. LEXIS 632 ( Ky. 1939 ).

The Attorney General, as such and as a taxpayer, may institute proceedings for a writ of prohibition to control the action of a Circuit Judge in the attempted illegal payment of jury claims, but he has no right to ask that the judge be restrained from holding the clerk in contempt for failure to pay jurors, since the clerk is the one on whom the burden would be placed to secure such relief. (Decided under prior law)Meredith v. Sampson, 277 Ky. 263 , 126 S.W.2d 124, 1939 Ky. LEXIS 632 ( Ky. 1939 ).

Opinions of Attorney General.

KRS 44.020 does not apply to the payment of the jury commissioners or jurors, both of which must be effected by each circuit clerk out of one of two imprest funds of the clerk established by the state treasurer and the Department of Finance (now Finance Cabinet) pursuant to this section. OAG 81-336 .

The practice employed by the courts for the payment of jurors in utilizing a standard form which indicates the name of the juror, the number of days served, and the amount paid to each juror, with the judge being required to certify the accuracy thereof, with disbursements being made to each juror by check, and with the cancelled checks being available for audit, is sufficient to satisfy the requirements of subsection (1) of this section. OAG 82-616 .

30A.120. Collection of fines and forfeitures — Semimonthly reports and payments to the Finance and Administration Cabinet — Delinquency.

  1. Every clerk shall collect all fines and forfeitures imposed in District and Circuit Court, and shall issue receipts therefor.
  2. At the close of business daily the clerk in each county shall deposit in a bank designated as a state depository the proceeds from fines and forfeitures, and within three (3) working days after the first and fifteenth of each month submit to the Finance and Administration Cabinet a report listing all fines and forfeitures collected, and shall pay over to the cabinet in the manner prescribed by the cabinet at the same time all costs, fines, forfeitures, and other moneys so reported.
  3. Upon the failure of the clerk to submit to the cabinet, within the prescribed period, the required report and to pay over, at the same time, the costs, fines, forfeitures and other moneys collected, the cabinet shall immediately notify the Auditor of Public Accounts that the clerk concerned is delinquent in the matter.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 12, effective January 2, 1978.

NOTES TO DECISIONS

1.Payment of Money.

Trial court had no authority to order the forfeited bond money be paid to the Adair County Sheriff’s Office and it had to be forfeited to the Commonwealth of Kentucky; when read together, KRS 30A.120 and 431.100 controlled the disposition of forfeited bonds and required that the money be paid to the Commonwealth. Coomer v. Commonwealth, 2013 Ky. App. LEXIS 73 (Ky. Ct. App. May 3, 2013).

2.Failure to Carry Out Duties.

Clerk of court’s failure to maintain proper records, failure to deposit moneys intact promptly into a state depository bank and failure to maintain an appropriate bank account accruing interest which is to be paid to the State Treasury was good cause to remove him from office for the remainder of his present term pursuant to Const. § 114(3). In re Overstreet, 851 S.W.2d 458, 1993 Ky. LEXIS 11 ( Ky. 1993 ).

Opinions of Attorney General.

To adequately meet the purpose of this section, the report to the Department for Finance and Administration (now Finance and Administration Cabinet) need only show a breakdown as to fine categories, the dollar amount of the fines and the date the fines are collected. OAG 77-439 .

The enforcement of city ordinances is generally within the exclusive jurisdiction of the District Court and all fees, fines, forfeitures and costs in any District Court case shall be collected and accounted for by the Circuit Court clerk and paid into the state treasury; however, the city does not receive fines imposed by the District Court and collected by the Circuit Court Clerk although the city, pursuant to former KRS 24A.190 through 24A.192 , may have funds returned to it if it qualifies under those statutes. OAG 78-682 .

30A.125. Circuit clerk to report final disposition of criminal case to Administrative Office of the Courts — Update of database within ninety days of disposition.

Each circuit clerk shall submit to the Administrative Office of the Courts, in a manner prescribed by the Administrative Office of the Courts, the final court disposition. Said disposition shall be inclusive of regulatory violations and traffic cases which are not subject to prepayment. The Administrative Office of the Courts shall update their database within ninety (90) days of the disposition. The update shall include information from the:

  1. Offender level;
  2. Prosecution/grand jury level;
  3. Court disposition level;
  4. Sentencing level; and
  5. Informational and evaluational level.

History. Enact. Acts 1986, ch. 389, § 24, effective July 15, 1986.

30A.130. Certification of copies of documents and records.

Every clerk shall prepare, attest and certify copies of all documents and records in his office upon payment of the charge established by statute.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 13, effective January 2, 1978.

Opinions of Attorney General.

A deputy Circuit Court clerk has the authority to certify as true copies various Circuit Court documents, such as indictments and warrants for applications for requisitions in extradition matters, where the deputy Circuit Court clerk has been duly authorized and supervised by the circuit clerk to perform such a statutory function. OAG 80-174 .

30A.140. Additional duties of clerk.

Every clerk shall perform such additional duties as may be prescribed by statute or court rule.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 14.

Opinions of Attorney General.

The District Court or Circuit Court, by rule, could direct the circuit clerk to handle moneys in those cases in which persons have been awarded civil judgments or restitution in criminal cases. OAG 77-434 .

The clerk may be reimbursed for any actual expenses paid for out of the clerk’s private funds in connection with the taking of passport photographs; however, where the picture taking was a private venture, the clerk was subject to the rule that a public office cannot be used for personal and private profit. OAG 82-181 .

While the county attorney or special prosecutor in District Court must prepare the subpoenas, the circuit clerk has the duty to sign and issue the subpoenas and put them in the hands of peace officers empowered to serve process, usually the county sheriff. OAG 83-206 .

30A.145. Clerks to send notices to State Board of Elections on incompetency determinations.

Each circuit clerk shall send certified notices of incompetency to the State Board of Elections within ten (10) days after the determination has become final with regard to any person before the courts of the county.

History. Enact. Acts 1988, ch. 341, § 4, effective July 15, 1988.

30A.150. Vacancy in office of clerk — Appointment of successor.

Whenever a vacancy occurs in the office of the clerk, the chief judge of the judicial circuit shall within thirty (30) days appoint a qualified successor to the office who shall serve until replaced as provided by Section 152 of the Constitution.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 15, effective January 2, 1978.

30A.160. Delivery of books and records to successor.

Upon the resignation, removal from office or expiration of the term of office of a clerk, he shall immediately deliver to his successor, or such other person as the court orders, all books, records, and other papers belonging to his office. For failure to do so he shall be guilty of a Class A misdemeanor.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 16, effective January 2, 1978.

Research References and Practice Aids

Cross-References.

Classification of offenses, penalties, see KRS 532.020 .

30A.170. Clerk ex officio a special circuit clerk of Commonwealth.

Each circuit clerk shall be, ex officio, a special circuit clerk of the Commonwealth, and as such shall perform the duties and services required by KRS 30A.180 , at such time and places, coextensive with the Commonwealth, as required by the Chief Justice.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 17, effective January 2, 1978.

30A.180. Assignment as special circuit clerk to fill vacancy.

In the event of a vacancy in the office of circuit clerk in any county, the Chief Justice may assign any other circuit clerk in the Commonwealth as special circuit clerk to fill the vacancy for a period not to exceed thirty (30) days, or until a person is appointed to fill the vacancy as provided by law, whichever occurs first.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 18, effective January 2, 1978.

30A.190. Accounting by circuit clerk for all fines, fees, forfeitures, and costs collected.

All fees, fines, forfeitures, and costs in any District Court or Circuit Court case shall be collected and accounted for by the Circuit Court clerk and paid into the State Treasury, except that:

  1. Sixty percent (60%) of any fines imposed for the violation of KRS Chapter 150 or KRS Chapter 235 shall when collected be paid into the fish and game fund;
  2. Sixty percent (60%) of any fines imposed for the violation of KRS 433.753 , 433.757 , or 512.070 shall when collected be paid to the county in which the violation occurred;
  3. Forty percent (40%) of any fines imposed for the violation of KRS 433.753 , 433.757 , or 512.070 shall, when collected, be paid to the agency issuing the citation; and
  4. One hundred percent (100%) of any fines imposed for the violation of KRS 224.40-100 (5) and 224.99-010 (10) shall, when collected, be transferred to the treasurer of the county in which the violation occurred.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 25, effective January 2, 1978; 1998, ch. 275, § 11, effective July 15, 1998; 2002, ch. 342, § 7, effective July 15, 2002; 2021 ch. 137, § 1, effective June 29, 2021.

Opinions of Attorney General.

A clerk is under no affirmative duty to collect the misdemeanor arrest fee payable to city policemen or a sheriff, but where the defendant is convicted and judgment of conviction and costs being entered, the defendant pays the fee to the clerk who pays the fee to the Department of Finance (now Finance Cabinet), then the arresting officer may collect his fee. OAG 79-125 .

Arrest fee money involves fees outside the range of this section. OAG 79-545 .

While this section provides that the circuit clerk shall collect all fees, fines, forfeitures and costs in any District or Circuit Court and pay them into the state treasury, such fees were intended to embrace court generated fees, not fees earned by local law enforcement officers. OAG 79-545 .

30A.200. Moneys deposited with court clerks and payable to a third person.

All moneys which are deposited with the clerk and which are payable to a third person, not the Commonwealth, or which may become payable to such third person as a result of court action or otherwise shall:

  1. Be logged in the appropriate record of the clerk and the person paying or depositing the money shall be given a receipt;
  2. Be deposited daily in a bank approved as a state depository bank in a special escrow account or accounts subject to the clerk’s withdrawal as required in the daily course of the clerk’s business or as may be ordered by a court; and
  3. Not be subject to the provisions of KRS Chapter 41 relating to the deposit of money in the State Treasury until by action of a court, such as forfeiture of a bond, the money is due and owing to the Commonwealth.

History. Enact. Acts 1978, ch. 200, § 1, effective June 17, 1978; 1998, ch. 563, § 1, effective July 15, 1998; 2002, ch. 183, § 7, effective July 15, 2002.

NOTES TO DECISIONS

1.Failure to Carry Out Duties.

Clerk of court’s failure to maintain proper records, failure to deposit moneys intact promptly into a state depository bank and failure to maintain an appropriate bank account accruing interest which is to be paid to the State Treasury was good cause to remove him from office for the remainder of his present term pursuant to Const. § 114(3). In re Overstreet, 851 S.W.2d 458, 1993 Ky. LEXIS 11 ( Ky. 1993 ).

30A.205. Interest on deposits.

  1. The bank accounts of the circuit clerk authorized by KRS 30A.200 shall accrue interest at such rate per annum upon the average daily deposit on hand at the close of banking hours as may be agreed upon by the bank and the Chief Justice or his designee. Interest accrued shall not be at a rate less than the interest paid on similar accounts of the Commonwealth in that bank.
  2. Interest shall accrue to the state and be paid to the State Treasury by the circuit clerk every six (6) months in the same manner as other moneys due the state.
  3. For services rendered by the depositories there shall be no charges made of any character or description.

History. Enact. Acts 1978, ch. 200, § 2, effective June 17, 1978.

NOTES TO DECISIONS

1.Denial of Interest.

In order for party to have been entitled to interest on the supersedeas bond, it was incumbent upon her to obtain a court order requiring the clerk to place the supersedeas bond funds into a separate escrow account and not into the clerk’s regular account; since she did not obtain a court order to place these funds into a special escrow account, but rather placed them in the regular clerk’s account, the Circuit Court clerk was required by this section to pay any interest earned on these funds to the state. Borden v. Martin, 765 S.W.2d 34, 1989 Ky. App. LEXIS 15 (Ky. Ct. App. 1989).

30A.210. Rules.

The Supreme Court shall issue rules relating to the receipt, handling, deposit, and disbursal of moneys by the circuit clerk which are held in accounts covered by KRS 30A.200 .

History. Enact. Acts 1978, ch. 200, § 3, effective June 17, 1978.

30A.250. Expenditure of funds for liability insurance.

The Court of Justice may expend funds necessary to insure circuit clerks and their deputies against any liability arising out of an act or omission committed in the scope and course of performing legal duties.

History. Enact. Acts 1979 (Ex. Sess.), ch. 22, § 4, effective May 12, 1979.

30A.260. Payment to clerk by debit or credit card account — Imposition of fee if check or sight order dishonored.

  1. A clerk may, but shall not be required to, accept payment of any fine, forfeiture, tax, or fee by debit or credit card account. If an individual chooses to pay a fine, forfeiture, tax, or fee by debit or credit card account, the clerk may recover the transaction fee charged by the issuer or acquirer of the account as part of and in addition to the original amount of the fine, forfeiture, tax, or fee.
  2. Where a check or similar sight order for the payment of money is tendered to a clerk for payment of any fine, forfeiture, tax, or fee and that check or sight order is subsequently dishonored, the clerk may charge to the person who tendered the check or sight order a fee, not exceeding twenty-five dollars ($25), in an amount set by the Supreme Court by rule.
  3. Fees collected under subsection (2) of this section shall be deposited into the general fund.

History. Enact. Acts 2006, ch. 237, § 1, effective July 12, 2006.

Additional Personnel

30A.300. Secretaries for Circuit Courts and District Courts.

  1. Each Circuit Judge may appoint a secretary for his circuit.
  2. Each secretary shall serve at the pleasure of the judge.
  3. The secretary shall meet the qualifications for the position established by the Judicial Personnel System.
  4. The secretary shall be compensated according to the salary schedule established for such positions in the Judicial Personnel System.
  5. Where there is a documented and demonstrable need for secretarial services for a District Court, the Chief District Judge may request the Chief Justice to authorize the employment of a secretary or secretaries by the Chief District Judge, either on a permanent or temporary basis.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 46, effective March 19, 1977.

30A.310. Authorization for appointment or employment of court personnel.

The Chief Justice, through the Administrative Office of the Courts, may authorize the appointment or employment by the chief judge of such secretaries, court reporters, interpreters, court administrators, friends of the court, and other personnel demonstrated as being necessary to the proper and efficient operation of the Court of Justice or any court which is a component thereof. Persons so authorized to be employed or appointed shall be compensated and classified according to the Judicial Personnel System.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 47, effective March 19, 1977.

Opinions of Attorney General.

Inasmuch as the chief justice, through the administrative office of the courts, has the power to promulgate personnel policies relating to the judicial personnel system, the hours requirement applicable to state employees generally has no application to judicial personnel. OAG 77-740 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Stenographers and Interpreters, § 20.00.

Interpreters

30A.400. Interpreters — Appointment — Hearing to determine need.

  1. If a person has been detained in police custody or has been arrested, an interpreter shall be provided prior to any interrogation or taking of a statement from the person if the court determines he meets the criteria set forth in KRS 30A.410 .
  2. Any statement made by a person who is entitled to the services of an interpreter under subsection (1) of this section to a law enforcement officer may be used as evidence against that person only if the statement was made, offered, or elicited in the presence of a qualified interpreter. This subsection shall not deny a person the right to make a voluntary confession.
  3. If the eligibility of the individual for an interpreter is challenged, the judge may, on good cause shown, hold a hearing to determine the bona fide need for interpreter services.
  4. If it is determined that the person is not entitled to these services, no portion of KRS 30A.425 to 30A.435 shall apply to him.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 64, effective January 2, 1978; 1992, ch. 144, § 5, effective July 14, 1992; 1994, ch. 405, § 7, effective July 15, 1994; 1994, ch. 452, § 1, effective July 15, 1994.

Legislative Research Commission Notes.

(7/15/94). This section was amended by 1994 Ky. Acts chs. 405 and 452 which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Certification.

Trial court did not abuse its discretion in admitting a police officer's testimony regarding defendant's admission to having sexual relations with the underage victim because, while the interpreter was not court certified, had never interpreted in a criminal setting before, and spoke a different dialect than defendant, the interpreter simply offered a translation of defendant's statement, a Daubert hearing was not required to preserve defendant's objections to the interpreter's qualifications, and defendant's statement was clearly an admission by a party opponent, which made the police officer's testimony clearly admissible. Lopez v. Commonwealth, 459 S.W.3d 867, 2015 Ky. LEXIS 1616 ( Ky. 2015 ).

Research References and Practice Aids

ALR

Right of accused to have evidence or court proceedings interpreted. 36 A.L.R.3d 276.

Ineffective assistance of counsel: use or nonuse of interpreter at prosecution of hearing-impaired defendant, 86 A.L.R.4th 698.

30A.405. Qualifications of interpreter — Standards.

  1. Any person appointed as interpreter pursuant to this chapter shall be qualified by training or experience to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.
  2. The Supreme Court shall prescribe standards, such as national certification, for appointment, qualifications, duties, and other matters relating to interpreters. In the area of providing interpreters for persons who are deaf or hard of hearing as described under KRS 30A.410(1)(a), the standards shall be established after consultation with the Kentucky Commission on the Deaf and Hard of Hearing, the Kentucky Registry of Interpreters for the Deaf, and the Kentucky Association of the Deaf.
  3. These rules and standards shall be administered by the Administrative Office of the Courts.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 65, effective January 2, 1976; 1992, ch. 144, § 6, effective July 14, 1992; 1994, ch. 452, § 2, effective July 15, 1994.

NOTES TO DECISIONS

1.Qualifications.

When an interpreter is introduced and used on the trial by appellant, it cannot later be claimed on appeal that the record fails to show that such interpreter was qualified. (Decided under prior law)Nioum v. Commonwealth, 128 Ky. 685 , 108 S.W. 945, 33 Ky. L. Rptr. 62 , 1908 Ky. LEXIS 89 ( Ky. 1908 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Certificate to Transcript of Evidence, Form 20.03.

30A.410. When interpreter shall be provided — Removal.

  1. The court in any matter, criminal or civil, shall appoint a qualified interpreter or interpreters, to be paid out of the State Treasury, for the following categories of persons, whether they are parties, jurors, or witnesses:
    1. Persons who because of deafness or hard of hearing:
      1. Use sign language, such as pidgin, signed English, American Sign Language, or gestures; or
      2. Are oral/aural and use interpreters and assistive technology,

        as their primary mode of communication;

    2. Persons who cannot communicate in English; and
    3. Any other person who has, in the opinion of the court, another type of disability which will prevent him from properly understanding the nature of the proceedings or substantially prejudice his rights.
  2. Upon request of the person for whom the interpreter is appointed, or on the court’s own motion, an interpreter may be removed for inability to communicate with the person, or if for reasonable cause another interpreter is so desired by the person for whom the interpreter is appointed, or because the services of an interpreter are not desired by the person.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 66, effective January 2, 1978; 1992, ch. 144, § 7, effective July 14, 1992; 1994, ch. 452, § 3, effective July 15, 1994.

NOTES TO DECISIONS

1.Providing an Interpreter.

Hearing impaired attorney sufficiently stated a claim under the ADA and § 504 of the Rehabilitation Act against the Commonwealth and court officials because she alleged that reasonable accommodations were refused by supplying her an interpreter, which prevented her from participating fully in court proceedings; KRS 30A.410 was not construed so narrowly so as to preclude the use of state funds to pay for an interpreter for an attorney. Mosier v. Kentucky, 640 F. Supp. 2d 875, 2009 U.S. Dist. LEXIS 66053 (E.D. Ky. 2009 ).

Court of Appeals erred in finding that the trial court failed to provide defendant with a Somali interpreter for his rape trial because the trial court acted well within its discretion when it determined that defendant was not entitled to an interpreter where, while the trial court failed to provide prior warning that an interpreter would not be available at trial and did not conduct a special evidentiary hearing to determine the adequacy of defendant's ability to communicate in English, the trial court's determination that defendant possessed a sophisticated, albeit heavily accented, level of competency in the English language was supported by sufficient evidence. Commonwealth v. Abukar, 497 S.W.3d 231, 2016 Ky. LEXIS 424 ( Ky. 2016 ).

Notes to Unpublished Decisions

1.Providing an Interpreter.

Unpublished decision: Trial court erred in denying defendant’s request for an interpreter, because, although defendant may have had a sufficient grasp on the English language to enable to him to converse with the police, a higher mastery of the language might be necessary to thoroughly understand all of the complexities of a trial. Abukar v. Commonwealth, 2014 Ky. App. LEXIS 118 (Ky. Ct. App. June 27, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1042 (Ky. Ct. App. June 27, 2014).

Opinions of Attorney General.

Inasmuch as the chief justice, through the administrative office of the courts, has the power to promulgate personnel policies relating to the judicial personnel system, the hours requirement applicable to state employees generally has no application to judicial personnel. OAG 77-740 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Certificate to Transcript of Evidence, Form 20.03.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Stenographers and Interpreters, § 20.00.

30A.415. Responsibility for payment for interpreter’s services.

  1. In criminal or civil cases, the Court of Justice shall be responsible for payment, including ordinary and reasonable expenses, for interpretive services for court appearances.
  2. In any case in which the interpreter is providing services out of court, even though that service relates to a pending court case, the agency requiring the services of the interpreter shall be responsible for payment.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 67, effective January 2, 1978; 1994, ch. 452, § 4, effective July 15, 1994.

NOTES TO DECISIONS

1.Compliance.

When a public defender’s office requested and received approval from a circuit court for interpreting services with respect to defendant’s interview with a police department, irrespective of the initial judicial authorization of the interpreting services and subsequent orders approving and/or reducing the interpreter’s fee, the payment obligation for the interpreter’s fee remained with the public defender’s office because it was the requesting agency. Starlight v. Commonwealth, 2019 Ky. App. Unpub. LEXIS 549 (Ky. Ct. App. July 26, 2019).

30A.420. Payment out of State Treasury.

In cases where compensation by the state is required or permitted interpreters’ fees and ordinary and reasonable expenses shall be paid out of the State Treasury according to the pay schedule of the Judicial Personnel System.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 68, effective January 2, 1978.

30A.425. Duties of interpreter.

The duties of the interpreter may include:

  1. Interpreting during court and court-related proceedings, including any and all meetings and conferences between client and his attorney;
  2. Translating or interpreting documents;
  3. Assisting in taking depositions;
  4. Assisting in administering oaths;
  5. Such other duties as may be required by the judge of the court making the appointment.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 69, effective January 2, 1978.

Opinions of Attorney General.

Inasmuch as the chief justice, through the administrative office of the courts, has the power to promulgate personnel policies relating to the judicial personnel system, the hours requirement applicable to state employees generally has no application to judicial personnel. OAG 77-740 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Stenographers and Interpreters, § 20.00.

30A.430. Interpreter not to be examined as witness — Other privileged communications.

Every person who acts as an interpreter in circumstances involving the arrest, police custody or other stage in a criminal, civil, or other matter of a person coming under KRS 30A.410 shall not be examined as a witness regarding conversations between that person and his attorney, when the conversations would otherwise be subject to the attorney-client privilege, without the consent of that person. Interpreters shall not be required to testify regarding any other privileged communications without the consent of the person for whom they are interpreting.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 70, effective January 2, 1978; 1994, ch. 452, § 5, effective July 15, 1994.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Certificate to Transcript of Evidence, Form 20.03.

30A.435. Use of equipment by interpreter or disabled person — Approval required.

  1. In the performance of his duties the interpreter may utilize electronic recording, foreign language translation, and other equipment. A person who is deaf, hard of hearing, or speech impaired may elect to use assistive technology in lieu of or in addition to the services of an interpreter.
  2. If the equipment sought to be used is of the type approved by the Administrative Office of the Courts, no further approval is required before the equipment may be used in court or court-related matters.
  3. If the equipment is of a type for which no approval has been issued by the Administrative Office of the Courts, the use of the equipment for court or court-related matter shall be approved in writing and in advance by the director of the Administrative Office of the Courts or his designee or by the judge making the appointment.
  4. If the equipment is of a type which has been disapproved by the Administrative Office of the Courts, it shall not be used in any court or court-related matter.
  5. All equipment utilized in court or court-related matters shall be in proper mechanical and working order and shall be fit for the intended use.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 71, effective January 2, 1978; 1994, ch. 452, § 6, effective July 15, 1994.

CHAPTER 31 Department of Public Advocacy

31.010. Department of Public Advocacy — Establishment — Functions — Independent agency.

There is hereby established as an independent agency of state government, attached for administrative purposes to the Justice and Public Safety Cabinet, the Department of Public Advocacy, in order to provide for the establishment, maintenance, and operation of a state-sponsored and controlled system for:

  1. The representation of indigent persons accused of crimes or mental states which may result in their incarceration or confinement; and
  2. The pursuit of legal, administrative, and other appropriate remedies to ensure the protection of the rights of persons with disabilities, independent of any agency that provides treatment, services, or rehabilitation to persons with disabilities. For the purposes of this chapter, “persons with disabilities” shall refer to those persons eligible for protection and advocacy services under Public Laws 99-319, 102-569, 103-218, 106-170, and 106-402 as amended and any other federal enabling statute hereafter enacted that defines the eligible client base for protection and advocacy services.

HISTORY: Enact. Acts 1972, ch. 353, § 1; 1976, ch. 177, § 1; 1978, ch. 155, § 19, effective June 17, 1978; 1984, ch. 338, § 1, effective July 13, 1984; 2002, ch. 283, § 1, effective July 15, 2002; 2007, ch. 85, § 115, effective June 26, 2007; 2012, ch. 151, § 2, effective July 12, 2012; 2017 ch. 167, § 9, effective June 29, 2017.

Legislative Research Commission Notes.

(6/26/2007). 2007 Ky. Acts ch. 85, relating to the creation and organization of the Justice and Public Safety Cabinet, instructs the Reviser of Statutes to correct statutory references to agencies and officers whose names have been changed in that Act. Such a correction has been made in this section.

NOTES TO DECISIONS

1.Position of Public Advocate.

The Office for Public Advocacy (now Department of Public Advocacy) is an agency of the executive branch of the state government, and insofar as its relationship to the Court of Justice is concerned, the position of the public advocate is no more and no less than that of any other lawyer practicing before it. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

2.Judicial Power to Appoint Counsel.

Before a trial court could invoke its inherent judicial power and step outside the framework of this chapter to appoint counsel for an indigent defendant on its own where the Department of Public Advocacy had failed to act, it had to exhaust the provisions of this chapter; such an action by the trial court must be a last resort alternative. Pillersdorf v. Department of Pub. Advocacy, 890 S.W.2d 616, 1994 Ky. LEXIS 125 ( Ky. 1994 ).

Cited:

Bradshaw v. Ball, 487 S.W.2d 294, 1972 Ky. LEXIS 67 ( Ky. 1972 ); Canterino v. Wilson, 562 F. Supp. 106, 1983 U.S. Dist. LEXIS 19338 (W.D. Ky. 1983 ); Kendrick v. Bland, 586 F. Supp. 1536, 1984 U.S. Dist. LEXIS 16327 (W.D. Ky. 1984 ).

Opinions of Attorney General.

This chapter reflects a policy of furnishing counsel and services to those unable to procure them so as to place such criminal defendants in a nearly equal position with those defendants who can pay. OAG 82-96 .

The courts, under their general judicial jurisdiction, in a case involving two or more defendants in the same case, may in the interest of justice appoint another attorney or attorneys to represent such multiple indigent defendants other than the defendant being represented by the public advocate; the public advocacy policies of KRS Chapter 31 cannot negate the authority of the trial judge in this particular. OAG 84-307 .

Research References and Practice Aids

Kentucky Bench & Bar.

Farley, The Public Defender System, Vol. 41, No. 2, April 1977, Ky. Bench & Bar 18.

Kentucky Law Journal.

Abramson, Kentucky’s Future Need for Attorneys, 63 Ky. L.J. 323 (1974-1975).

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Comments, The Contemporaneous Objection Rule: Time for a Re-Examination, 67 Ky. L.J. 212 (1978-1979).

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

Notes, Open Debate Over Closed Doors: The Effect of the New Developmental Disabilities Regulations on Protection and Advocacy Programs, 85 Ky. L.J. 955 (1996-97).

Treatises

Petrilli, Kentucky Family Law, Termination of Parental Rights and Adoption, § 29.4.

31.015. Public Advocacy Commission — Appointment — Members — Terms — Compensation — Duties.

    1. The Public Advocacy Commission shall consist of the following members, none of whom shall be a prosecutor, law enforcement official, or judge, who shall serve terms of four (4) years, except the initial terms shall be established as hereafter provided: (1) (a) The Public Advocacy Commission shall consist of the following members, none of whom shall be a prosecutor, law enforcement official, or judge, who shall serve terms of four (4) years, except the initial terms shall be established as hereafter provided:
      1. Two (2) members appointed by the Governor;
      2. One (1) member appointed by the Governor. This member shall be a child advocate or a person with substantial experience in the representation of children;
      3. Two (2) members appointed by the Kentucky Supreme Court;
      4. Three (3) members, who are licensed to practice law in Kentucky and have substantial experience in the representation of persons accused of crime, appointed by the Governor from a list of three (3) persons submitted to him or her for each individual vacancy by the board of governors of the Kentucky Bar Association;
      5. The dean, ex officio, of each of the law schools in Kentucky or his or her designee; and
      6. One (1) member appointed by the Governor from a list of three (3) persons submitted to him or her by the joint advisory boards of the Protection and Advocacy Division of the Department of Public Advocacy.
    2. Any member of the commission serving prior to July 15, 2002, shall serve until the expiration of his or her current term of office. Subsequent appointments shall be for a term of four (4) years from the date of expiration of the term for which his or her predecessor was appointed.
  1. At the first meeting of the commission, a drawing by lot shall be conducted to determine the length of each original member’s term. Initially there shall be four (4) two (2) year terms, four (4) three (3) year terms, and four (4) four (4) year terms. Vacancies in the membership of the commission shall be filled in the same manner as original appointments. Appointments to fill vacancies occurring before the expiration of a term shall be for the remainder of the unexpired term.
  2. The commission shall first meet at the call of the Governor and thereafter as the commission shall determine on a regular basis, but at least quarterly, and shall be presided over by a chairperson elected by its members for a one (1) year term. A majority of commission members shall constitute a quorum, and decisions shall require the majority vote of those present; except that a recommendation to the Governor pertaining to the appointment, renewal of the appointment, or removal of the public advocate shall require a majority vote of the commission. Each member of the commission shall have one (1) vote, and voting by proxy shall be prohibited.
  3. The public advocate shall, upon appointment or renewal, be an ex officio member of the commission without the power to vote, shall serve as secretary of the commission, and shall be entitled to attend and participate in all meetings of the commission except discussions relating to renewal of his or her term or his or her removal.
  4. Commission members shall be reimbursed for reasonable and necessary expenses incurred while engaged in carrying out the duties of the commission and shall receive one hundred dollars ($100) per day for each meeting attended unless prohibited by law from receiving such compensation.
  5. The commission shall:
    1. Receive applications, interview, and recommend to the Governor three (3) attorneys as nominees for appointment as the public advocate;
    2. Assist the public advocate in drawing up procedures for the selection of his or her staff;
    3. Review the performance of the public advocacy system and provide general supervision of the public advocate;
    4. Assist the Department of Public Advocacy in ensuring its independence through public education regarding the purposes of the public advocacy system; and
    5. Review and adopt an annual budget prepared by the public advocate for the system and provide support for budgetary requests to the General Assembly.
  6. In no event shall the commission or its members interfere with the discretion, judgment, or advocacy of employees of the Department of Public Advocacy in their handling of individual cases.

HISTORY: Enact. Acts 1982, ch. 377, § 2, effective July 15, 1982; 1994, ch. 486, § 18, effective July 15, 1994; 2002, ch. 283, § 2, effective July 15, 2002; 2007, ch. 85, § 116, effective June 26, 2007; 2010, ch. 107, § 1, effective July 15, 2010; 2017 ch. 167, § 10, effective June 29, 2017.

Legislative Research Commission Notes.

(6/26/2007). 2007 Ky. Acts ch. 85, relating to the creation and organization of the Justice and Public Safety Cabinet, instructs the Reviser of Statutes to correct statutory references to agencies and officers whose names have been changed in that Act. Such a correction has been made in this section.

NOTES TO DECISIONS

1.Constitutionality.

The power to appoint members of boards and agencies within the executive department of government is an essentially executive power which cannot be exercised by any member of the legislative department; accordingly, the former provisions in this section by which the Speaker of the House of Representatives and the President Pro Tem of the Senate were authorized to make appointments are an invalid unconstitutional incursion by the General Assembly, or in this case, its designees, into the separation of powers doctrine. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

Opinions of Attorney General.

The Kentucky Supreme Court cannot appoint members of the Public Advocacy Commission, as provided in former subdivision (1) (d) of this section. OAG 94-5 .

Research References and Practice Aids

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

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

31.020. Public advocate — Qualifications — Selection — Term — Salary — Staff.

  1. The Department of Public Advocacy shall consist of the public advocate, deputy public advocate, general counsel, such assistant public advocates as the public advocate shall deem necessary, and such secretarial and other personnel as the public advocate shall deem necessary.
  2. The public advocate shall be appointed by the Governor from a list of three (3) attorneys submitted to him or her by the Public Advocacy Commission; shall be an attorney licensed to practice law in Kentucky with at least five (5) years experience in the practice of law; shall be excepted from the classified service; shall be the chief administrator of the Department of Public Advocacy and an appointing authority as that term is defined in KRS 18A.005 ; and shall serve a term of four (4) years, which is renewable, unless removed by the Governor. The incumbent public advocate shall serve until a successor is nominated by the commission and approved by the Governor. The compensation of the public advocate shall be set by the provisions of KRS 64.640 .
  3. The deputy public advocate shall be an attorney and shall be appointed by the public advocate and shall serve at his or her pleasure.
  4. The general counsel shall be an attorney and shall be appointed by the public advocate and shall serve at his or her pleasure. The general counsel shall represent the interests of the department as directed by the public advocate.
  5. The assistant public advocates shall be attorneys, shall be appointed by the public advocate, shall be covered by the merit system, and shall not be subject to the provisions of KRS 12.210 .
  6. Secretarial, clerical, and other personnel shall be appointed by the public advocate and shall be covered by the merit system.

History. Enact. Acts 1972, ch. 353, § 2; 1974, ch. 74, Art. V, § 4; 1974, ch. 358, § 1; 1978, ch. 155, § 20, effective June 17, 1978; 1982, ch. 377, § 1, effective July 15, 1982; 2012, ch. 151, § 3, effective July 12, 2012.

NOTES TO DECISIONS

Cited:

Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

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).

31.025. Liability insurance for full-time public advocates. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 295, § 10, effective July 15, 1980) was repealed by Acts 2002, ch. 283, § 20, effective July 15, 2002.

31.030. Authority and duties of department.

The authority and duties of the Department of Public Advocacy shall include but are not limited to:

  1. Administering the statewide public advocacy system created by this chapter or by any other appropriate legislation or court decision;
  2. Providing technical aid to local counsel representing indigent persons;
  3. Assisting local counsel on appeals or taking appeals for local counsel, in the same manner as such appeals for the Commonwealth are presently handled by the Attorney General;
  4. Developing and promulgating standards and administrative regulations, rules, and procedures for administration of the defense of indigent defendants in criminal cases that the public advocate, statutes, or the courts determine are subject to public assistance;
  5. Determining necessary personnel for the department and appointing staff attorneys, who shall be “assistant public advocates,” and non-lawyer assistants within the merit system, subject to available funding and employee allotments;
  6. Maintaining and exercising control over the department’s information technology system, and working with the Commonwealth Office of Technology to ensure that the department’s information technology is in conformity with the requirements of state government;
  7. Reviewing and approving local plans for providing counsel for indigent persons;
  8. Conducting research into, and developing and implementing methods of, improving the operation of the criminal justice system with regard to indigent defendants and other defendants in criminal actions, including participation in groups, organizations, and projects dedicated to improving representation of defendants in criminal actions in particular, or the interests of indigent or impoverished persons in general;
  9. Issuing rules, promulgating administrative regulations, and establishing standards as may be reasonably necessary to carry out the provisions of this chapter, the decisions of the United States Supreme Court, the decisions of the Kentucky Supreme Court, Court of Appeals, and other applicable court decisions or statutes;
  10. Being authorized to pursue legal, administrative, and other appropriate remedies to ensure the protection of the rights of persons with disabilities;
  11. Being authorized to purchase liability insurance for the protection of all full-time public advocates, deputy public advocates, and assistant public advocates to protect them from liability for malpractice arising in the course or scope of employment and for the protection of attorneys with whom the Department of Public Advocacy contracts to protect them from liability for malpractice arising in the course or scope of the contract;
  12. Being authorized to seek and apply for and solicit funds for the operation of the defense of indigent persons or protection of the persons with disabilities programs from any source, public or private, and to receive donations, grants, awards, and similar funds from any legal source. Those funds shall be placed in a special account for the Department of Public Advocacy and those funds shall not lapse;
  13. Being authorized to assign an attorney, including a conflict attorney under a plan, for good cause, at any stage of representation, including trial, appeal, or other post-conviction or post-disposition proceeding, including discharge revocation hearings, preliminary parole revocation hearings, and conditional discharge revocation hearings, regardless of whether the hearings are conducted by constitutional judges or executive branch administrative law judges;
  14. Filing with the Legislative Research Commission an annual report, by September 30 of each year, setting forth the total number of cases assigned to the department, the average number of cases per department attorney, all funding available to the department, the average amount of state funds expended per assigned case, and any other information requested by the Legislative Research Commission or that the public advocate finds necessary to inform the General Assembly, the judicial or executive branches, or the public of the activities conducted by the department during the previous fiscal year; and
  15. Do other activities and institute other programs as necessary to carry out the provisions of this chapter, or those decisions or statutes which are the subject of this section.

History. Enact. Acts 1972, ch. 353, § 3; 1976 (Ex. Sess.), ch. 14, § 8; 1978, ch. 155, § 21, effective June 17, 1978; 2002, ch. 283, § 3, effective July 15, 2002; 2012, ch. 151, § 4, effective July 12, 2012; 2014, ch. 87, § 2, effective July 15, 2014.

NOTES TO DECISIONS

1.In General.

Specification of the authority and duties of the Department of Public Advocacy in KRS 31.030 clearly anticipates that the representation provided to indigent defendants will be at least minimally competent. Moore v. Commonwealth, 199 S.W.3d 132, 2006 Ky. LEXIS 135 ( Ky. 2006 ).

2.Ineffective assistance.

Where movant failed to assert, in prior motion to vacate, set aside or correct sentence, that the entire litigation staff of the Department of Public Advocacy, including the present director, conspired to deprive him of the assistance required under subsection (2) of this section, he was precluded from raising the issue in a successive motion; his claim that he did not know of the alleged conspiracy was without merit as the alleged purpose of the conspiracy was to create an issue of ineffective assistance of counsel which would cause movant’s sentence to be vacated pursuant to RCr 11.42. McQueen v. Commonwealth, 949 S.W.2d 70, 1997 Ky. LEXIS 81 (Ky.), cert. denied, 521 U.S. 1130, 117 S. Ct. 2536, 138 L. Ed. 2d 1035, 1997 U.S. LEXIS 4260 (U.S. 1997).

Cited:

Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Farley, The Public Defender System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 18.

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).

Notes, Open Debate Over Closed Doors: The Effect of the New Developmental Disabilities Regulations on Protection and Advocacy Programs, 85 Ky. L.J. 955 (1996-97).

31.035. Advisory boards for protection and advocacy division — Appointment — Number — Terms — Compensation.

  1. There shall be advisory boards for the Protection and Advocacy Division of the Department of Public Advocacy as set forth in Public Laws 99-319 and 106-402 and their implementing regulations. Each shall be comprised of not more than seventeen (17) citizen members appointed for terms of not less than two (2) years by the Protection and Advocacy Division director.
  2. The advisory boards shall meet at least quarterly and on other occasions as may be necessary upon the call of the Protection and Advocacy Division director.
  3. The members of the advisory boards shall receive no compensation for their services, but shall be reimbursed for all expenses incurred through the performance of their duties as members of their respective advisory board. No member of any board shall be held to be a public officer by reason of his or her membership on the board.

History. Enact. Acts 1980, ch. 295, § 9, effective July 15, 1980; 2002, ch. 283, § 4, effective July 15, 2002.

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).

31.040. District public defender — Creation and number. [Repealed.]

Compiler’s Notes.

This section (Acts 1972, ch. 353, § 4) was repealed by Acts 1974, ch. 358, § 13.

31.050. Public advocacy plans — Review and approval or denial by public advocate — Funding by department and governmental unit — Recordkeeping — Annual report.

  1. The public advocate shall review and approve or deny or suggest modifications to all plans which are submitted to the Department of Public Advocacy for defense of indigent persons.
  2. If the plan for defense of indigent persons is approved, the public advocate may allot a sufficient sum, subject to the approval of the secretary of the Finance and Administration Cabinet to the county or counties in the judicial circuit involved for the purpose of assisting the said plan.
  3. At the end of each funding period, any moneys not expended shall revert to the state Department of Public Advocacy.
  4. Counties, urban-counties, charter counties, consolidated local governments, and other units submitting applications under this chapter shall be obligated to pay and shall pay all costs incurred in their own defense of indigent programs which are in excess of the maximum amount allotted or other maximum amount of grant as specified in this chapter.
  5. The fiscal court; legislative body of the urban-county, charter county, or consolidated local government; or nonprofit corporation is authorized to seek and apply for and solicit funds for the operation of the defense of the indigent from any source, public or private, and to receive donations, grants, awards, and similar funds from any legal source.
  6. A defending attorney shall keep appropriate records respecting each needy person whom he or she represents under this chapter.
  7. The public advocate, nonprofit organization, or person administering a public advocacy plan shall submit an annual report to the Department of Public Advocacy showing the number of persons represented under this chapter, the crimes involved, the outcome of each case, and the expenditures, totalled by kind, made in carrying out the responsibilities imposed by this chapter.

History. Enact. Acts 1972, ch. 353, § 5; 1974, ch. 358, § 2; 1976, ch. 177, § 2; 1978, ch. 155, § 22, effective June 17, 1978; 2002, ch. 283, § 5, effective July 15, 2002.

NOTES TO DECISIONS

1.Authority to Set Excess Fees.

Where the court appointed attorneys to represent indigent defendant and attempted to set those attorneys’ fees under KRS 31.070 (repealed and reenacted as KRS 31.231) in a county with a local plan of indigent representation pursuant to this section, the trial judge did not have the authority to direct the State Department for Public Advocacy to pay fees in excess of the fee parameters provided by KRS 31.070 (repealed and reenacted as KRS 31.231). Pillersdorf v. Department of Pub. Advocacy, 890 S.W.2d 616, 1994 Ky. LEXIS 125 ( Ky. 1994 ).

Cited:

Boyle County Fiscal Court v. Shewmaker, 666 S.W.2d 759, 1984 Ky. App. LEXIS 479 (Ky. Ct. App. 1984).

Opinions of Attorney General.

Under this section and KRS 31.060 , and in view of KRS 41.110 , 45.230 (repealed, now see KRS 45.229 ) and Const., § 230, excess funds returned to the public defender (now public advocate) at the end of the fiscal year may not be returned to a county as an addition to the maximum formula state grant provided. OAG 73-525 .

Where a county was delinquent in payments to the county employees retirement fund, which is a state fund under KRS 78.520 , and the board of trustees of the county employees retirement system proceeded, under KRS 78.535 , to collect this arrearage, and the state treasurer, under the authority of KRS 44.030 , paid the arrearage to the retirement system fund out of funds which had been granted to the delinquent county by the state public defender’s office pursuant to this section and former KRS 31.160 (now repealed), subsequently issuing a check to the delinquent county only for the amount of the grant from the public defender’s office less the retirement fund arrearage, this action violated neither Const., § 230 nor KRS 41.110 , KRS 44.030 being considered an exception to the provisions of that section. OAG 73-561 .

Although a county’s commitment to a public advocate program is permissive, when a county does select a public advocate program under former KRS 31.160 (now repealed), the county is committed for that particular fiscal year and must pay any necessary defense expenses other than the defense counsel fees covered in the state’s appropriation under this section; where a county is currently under a public advocate program, the county must bear the expense of expert witnesses’ fees and psychological examinations used in the defense of indigents charged with felonies and represented by the public advocate. OAG 80-401 .

Research References and Practice Aids

Kentucky Law Journal.

Abramson, Kentucky’s Future Need for Attorneys, 63 Ky. L.J. 323 (1974-1975).

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

31.051. Moneys from indigent defendants credited to fund of county where trial held — Use — Administrative fee assessed on persons for whom counsel is provided. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 309, § 2, effective July 1, 1978; 1994, ch. 395, § 1, effective July 15, 1994; 1998, ch. 491, § 1, effective July 15, 1998) was repealed by Acts 2002, ch. 283, § 20. For present law, see KRS 31.211 .

Legislative Research Commission Notes.

(7/15/2002) Under KRS 446.260 , the repeal of this section in 2002 Ky. Acts ch. 283 prevails over its amendment in 2002 Ky. Acts ch. 183.

31.060. Local office in jurisdiction with ten or more Circuit Judges required — Funding by governmental unit required in amount set by department.

  1. Each county, urban-county, charter county, and consolidated local government with a judicial circuit containing ten (10) or more Circuit Judges, excluding judges of family court divisions as designated by the Supreme Court, shall establish and maintain an office of public advocacy and submit a plan for the operation thereof to the Department of Public Advocacy. If the plan submitted is approved by the Department of Public Advocacy, the public advocate shall grant to the county, urban-county, charter county, or consolidated local government the amount to which it would be entitled under KRS 31.050(2) which shall be used as the Commonwealth’s share in defraying the expenses of the program in that county, urban-county, charter county, or consolidated local government.
  2. A county, urban-county, charter county, or consolidated local government identified in subsection (1) of this section shall contribute to the funding of the plan selected and approved in such amounts as the Department of Public Advocacy shall deem reasonable and necessary.

History. Enact. Acts 1972, ch. 353, § 6; 1974, ch. 358, § 3; 1978, ch. 155, § 23, effective June 17, 1978; 2002, ch. 283, § 6, effective July 15, 2002; 2012, ch. 151, § 5, effective July 12, 2012.

Opinions of Attorney General.

Under this section and KRS 31.050 , and in view of KRS 41.110 , 45.230 (repealed, now see KRS 45.229 ) Const., § 230, excess funds returned to the public defender (now public advocate) at the end of the fiscal year may not be returned to a county as an addition to the maximum formula state grant provided. OAG 73-525 .

The term “funding period” is to be construed in its ordinary statutory sense as applied to the state and counties as a fiscal year commencing July 1 and ending June 30. OAG 73-753 .

Research References and Practice Aids

Kentucky Law Journal.

Abramson, Kentucky’s Future Need for Attorneys, 63 Ky. L.J. 323 (1974-1975).

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

Notes, McGrath, Sommers v. Commonwealth: An Indigent Criminal Defendant’s Right to Publicly Funded Expert Assistance Other than the Assistance of Counsel, 84 Ky. L.J. 387 (1995-96).

31.065. Local office in county with less than ten Circuit Judges discretionary — Methods of delivering services — Requirements if county elects — Department’s responsibility if county does not elect.

    1. The fiscal court of each county or legislative body of an urban-county, charter county, or consolidated local government, except a county, urban-county, charter county, or consolidated local government wherein the judicial district is required to maintain a public advocate under this chapter, may provide for the representation of needy persons by: (1) (a) The fiscal court of each county or legislative body of an urban-county, charter county, or consolidated local government, except a county, urban-county, charter county, or consolidated local government wherein the judicial district is required to maintain a public advocate under this chapter, may provide for the representation of needy persons by:
      1. Contracting with one (1) or more attorneys, professional service corporations, nonprofit organizations, or an association of attorneys to provide the legal services required in this chapter, provided there are suitable attorneys available willing to provide these services for reasonable compensation;
      2. Establishing and maintaining an office of public advocacy; or
      3. Adopting any combination of the options provided for in subparagraphs 1. and 2. of this paragraph.
    2. The fiscal court of a county or the legislative body of an urban-county, charter county, or consolidated local government may join with one (1) or more other counties, urban-counties, charter counties, or consolidated local governments in its judicial district or elsewhere or with any cities located within the county, urban-county, charter county, or consolidated local government or counties, urban-counties, charter counties, or consolidated local governments in providing this representation. These agreements shall be made pursuant to the provisions of KRS Chapter 65.
    3. If it elects to establish and maintain an office of public advocacy, and if the appropriate legislative authorities and fiscal courts concerned respectively agree on qualifications, term of office, compensation, support, and appointment under KRS 31.071(1), the fiscal court of a county or the legislative body of an urban-county, charter county, or consolidated local government may join with cities within the county, urban-county, charter county, or consolidated local government and with the legislative body of one (1) or more other counties, urban-counties, charter counties, or consolidated local governments to establish and maintain a joint office of public advocacy. In that case, the participating counties, urban-counties, charter counties, or consolidated local governments shall be treated for the purposes of this chapter as if they were one (1) county, urban-county, charter county, or consolidated local government. The agreements shall be made pursuant to the provisions of KRS Chapter 65.
  1. If a county, urban-county, charter county, or consolidated local government chooses not to submit a plan under subsection (1) of this section, or if a plan submitted to the public advocate is denied as provided by KRS 31.050 , then the public advocate may establish for a county containing less than ten (10) Circuit Judges or a group of counties a local public advocacy system by:
    1. Contracting with one (1) or more attorneys, professional service corporations, nonprofit organizations, or an association of attorneys to provide the legal services required in this chapter; provided there are suitable attorneys available who are willing to provide those services for reasonable compensation; or
    2. Providing an office of public advocacy, which shall be staffed by an assistant public advocate who directs the office and who shall be an attorney, and any number of assistant public advocates and other personnel necessary to perform adequately the functions of said office.

History. Enact. Acts 1974, ch. 358, § 8; 1978, ch. 155, § 4; 1982, ch. 377, § 3, effective July 15, 1982; 2002, ch. 283, § 7, effective July 15, 2002.

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).

31.070. Fees — Appointed counsel. [Repealed and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 353, § 7; 1976, ch. 177, § 3; 1978, ch. 155, § 25, effective June 17, 1978; 1998, ch. 491, § 2, effective July 15, 1998) was repealed and reenacted as KRS 31.235 by Acts 2002, ch. 283, § 18.

31.071. Requirement if county elects local office — Failure to provide attorney — Responsibility for payment.

  1. If the fiscal court of a county or legislative body of an urban-county, charter county, or consolidated local government elects to establish and maintain an office for public advocacy, it shall:
    1. Appoint the public advocate and any number of assistant public advocates necessary to adequately perform the functions of said office.
    2. Prescribe the qualifications of the public advocate, his term of office which may not be more than four (4) years and fix the rate of annual compensation for him and his assistants. In order to be qualified for appointment as public advocate, a person must have been admitted to the practice of law and licensed to practice in the Commonwealth of Kentucky and be competent to counsel and defend a person charged with a crime.
    3. Provide for the establishment, maintenance, and support of the office.
  2. If the fiscal court of a county or the legislative body of an urban-county, charter county, or consolidated local government elects to arrange with a nonprofit organization to provide attorneys, the county, urban-county, charter county, or consolidated local government and any cities involved shall provide for the establishment, maintenance, and support of that organization or shall reimburse the organization for such expenses.
  3. If, in a county where the fiscal court or in an urban-county, charter county, or consolidated local government where the legislative body has elected to provide representation under subsection (1) or (2) of this section, after finding that the fiscal cour, or legislative body fails to provide an attorney to a person eligible for representation under KRS Chapter 31, a court assigns, under the court’s inherent authority, an attorney to represent a needy person, it shall prescribe a reasonable rate of compensation for his services and shall determine the direct expenses necessary to representation for which he would be reimbursed. The county, urban-county, charter county, or consolidated local government shall pay the attorney the amounts so prescribed from the funds made available by the Department of Public Advocacy.
  4. An attorney under subsection (3) of this section shall be compensated for his services with regard to the complexity of the issues, the time involved, and other relevant considerations. However, no fee shall be paid in excess of the prevailing maximum fee per attorney paid by the Department of Public Advocacy for the type of representation provided, and no hourly rate shall be paid in excess of the prevailing hourly rate paid by the Department of Public Advocacy for the type of representation provided.

History. Repealed, reenact., and amend. Acts 2002, ch. 283, § 8, effective July 15, 2002.

NOTES TO DECISIONS

1.Special Circumstances Warranting Higher Fee.

No one factor can ipso facto constitute “special circumstances.” Yet, where the consideration of all proper factors demonstrate unequivocally that “special circumstances” exist, then the trial court must properly construe subsection (4) of this section and award additional reasonable attorney fees as a matter of law. Commonwealth v. Lavit, 882 S.W.2d 678, 1994 Ky. LEXIS 82 ( Ky. 1994 ).

Services rendered by attorneys acting as public defenders in capital murder case required a finding that special circumstances existed to warrant a higher total attorney fee as a matter of law where the trial court’s judgment in failing to award more than the statutory cap provided for in subsection (4) of this section was inconsistent with the trial court’s findings that the legal services rendered by attorneys and their expenses was necessary, fair, and reasonable. Commonwealth v. Lavit, 882 S.W.2d 678, 1994 Ky. LEXIS 82 ( Ky. 1994 ).

Cited:

Young v. Commonwealth, 585 S.W.2d 378, 1979 Ky. LEXIS 269 ( Ky. 1979 ); Boyle County Fiscal Court v. Shewmaker, 666 S.W.2d 759, 1984 Ky. App. LEXIS 479 (Ky. Ct. App. 1984).

Opinions of Attorney General.

Although this section might of itself prevent a person from serving as a public defender (now public advocate) and city attorney, especially if the public defender is employed to represent all indigents rather than where various attorneys are assigned on a case-by-case basis to represent indigents, there might also be an ethical problem involved which should be resolved by the Kentucky State Bar Association. OAG 73-851 .

Even after a fiscal court has established an office for public defender (now advocate), it may abolish that office and contract with a nonprofit organization to provide defender services. OAG 78-81 .

By reasonable implication the fiscal court has the authority by ordinance to establish such positions, that is clerks, investigators, stenographers, as are necessary to carry out responsibilities of the office for public advocacy; once a particular position is authorized and created by the fiscal court, then under this section the district public advocate can fill the appointment, except that the fiscal court apoints the assistant district public advocates. OAG 78-700 .

If the fiscal court by ordinance has established the position of investigator for the staff of the district public advocate, then that position can be filled by the district public advocate without the consent of the fiscal court and the position cannot be filled by the nomination by a member of the fiscal court and the subsequent acceptance of the nomination by the fiscal court as a body. OAG 78-700 .

The procedure envisioned in this section would govern over the general procedure established in KRS 67.710(7). OAG 78-700 .

The court assigning an attorney to represent a needy defendant will prescribe a reasonable fee under subsection (3) of this section, which shall be paid by the county; however, no county, under former KRS 31.240(3)(repealed, see now KRS 31.050(4)), shall be required to pay the maximum amounts provided in subsection (4) of this section, unless such amounts are approved by the Circuit Judge. Under this analysis, the mere agreement of the county to pay only just what the state contributes to the county, plus what the indigent pays, may not meet the requirements of subsection (3) of this section. OAG 84-280 .

Subsection (3) of this section was not intended to stake out the state contribution as the maximum to be paid by the committed county. In addition, where the court has set the fee under subsection (3) of this section, the fiscal court must, by the terms of former KRS 31.190 (repealed, see now KRS 31.050 ), pay that fee out of county appropriations, even if it equals the maximum provided in subsection (4) of this section; however, the court’s prescribed fee should not exceed the legislative maximum set out in subsection (4) of this section. OAG 84-280 .

Research References and Practice Aids

Kentucky Bench & Bar.

Farley, The Public Defender System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 18.

Mapother, Attorneys’ Fees Recoverable in Kentucky Litigation, Vol. 44, No. 4, October, 1980, Ky. Bench & Bar 28.

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).

31.080. Public advocate — Solicitation of funds for programs. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 353, § 8; 1978, ch. 155, § 26, effective June 17, 1978) was repealed by Acts 2002, ch. 283, § 20. For present law, see KRS 31.215 .

31.085. Plans must comply with department’s rules and regulations.

All plans authorized by this chapter shall conform to all rules and regulations promulgated by the Department of Public Advocacy.

History. Repealed, reenact., and amend. Acts 2002, ch. 283, § 9, effective July 15, 2002.

Compiler’s Notes.

This section was formerly compiled as KRS 31.165 .

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).

31.090. Funding deficiencies. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 353, § 9; 1974, ch. 358, § 4; 1976, ch. 177, § 4) was repealed by Acts 2002, ch. 283, § 20.

31.100. Definitions.

The following terms and standards shall apply, subject to further definition and regulation by the Department of Public Advocacy:

  1. “Defending attorney” means any attorney who is representing a needy or indigent person;
  2. “Department” means the Department of Public Advocacy;
  3. “Detain” means to have in custody or otherwise deprive of freedom of action;
  4. “Expenses,” when used with reference to representation under this chapter, includes the expenses of investigation, other preparation, and trial, together with the expenses of any appeal;
  5. “Needy person” or “indigent person” means:
    1. A person eighteen (18) years of age or older or an emancipated minor under the age of eighteen (18) who, at the time his or her need is determined, is unable to provide for the payment of an attorney and all other necessary expenses of representation;
    2. A minor, under the age of eighteen (18), who is a party defendant in an action of being an habitual runaway from his or her parent or person exercising control or supervision of the child brought under KRS 630.020(1) or of being beyond the control of parents brought under KRS 630.020(2), and at the time his or her need is determined is unable to provide for the payment of an attorney and all other necessary expenses of representation;
    3. An unemancipated minor, under the age of eighteen (18), who allegedly has committed an offense as described in KRS 610.010(1), or who allegedly is beyond the control of the school as described in KRS 610.010(2)(a), or who allegedly is an habitual truant from school as described in KRS 610.010(2)(b), or who allegedly is an habitual runaway as described in KRS 610.010(2)(c), whose custodial parent or guardian at the time the need of the minor is determined is unable to provide for the payment of an attorney and all other necessary expenses of representation, and who cannot personally so provide; or
    4. An unemancipated minor, under the age of eighteen (18), alleged to have committed an offense as described in KRS 610.010(1) or (2)(a), (b), or (c), whose custodial parent or guardian at the time the need of the minor is determined has interests adverse to the child relevant to the charged offenses and who is able to provide for the payment of an attorney and all other necessary expenses of representation, when such representation is not provided or is not consented to by the unemancipated minor;
  6. “Non-lawyer assistants” shall:
    1. Have the same meaning contemplated by SCR 3.130(5.3) “Responsibilities regarding non-lawyer assistants”; and
    2. Be subject to the Rules of Professional Conduct and the Rules of Evidence as they relate to client confidentiality, attorney-client communications, and attorney-client privilege.

      All non-lawyer assistants hired by the department who are independently licensed or certified shall practice under the attorney-client privilege, irrespective of other obligations or duties arising with their independent licenses or certifications. Nothing in this subsection shall authorize the disclosure of confidential information to non-lawyer assistants within the department who are not performing duties at the direction of an attorney;

  7. “Plan” means an agreement between the Department of Public Advocacy and attorneys for the representation of indigent persons who are entitled to representation under this chapter and who, by reason of conflict or otherwise, cannot be represented by the department; and
  8. “Serious crime” includes:
    1. A felony;
    2. A misdemeanor or offense any penalty for which includes the possibility of confinement;
    3. Any legal action which could result in the detainment of a defendant; and
    4. An act that, but for the age of the person involved, would otherwise be a serious crime.

History. Enact. Acts 1972, ch. 353, § 10; 1974, ch. 358, § 5; 1976, ch. 177, § 5; 1978, ch. 155, § 27, effective June 17, 1978; 1986, ch. 104, § 1, effective July 15, 1986; 2002, ch. 283, § 10, effective July 15, 2002; 2008, ch. 87, § 14, effective July 15, 2008; 2014, ch. 87, § 1, effective July 15, 2014.

NOTES TO DECISIONS

1.Needy Person.

Because the trial court improperly denied appointment of counsel based upon the mere fact that a property bond had been posted to secure defendant’s release following his indictment, the court failed to apply the factors to determine defendant’s indigency as provided in KRS 31.120 , and the court did not determine whether defendant was in fact indigent, defendant’s conviction for possession was reversed. Tinsley v. Commonwealth, 185 S.W.3d 668, 2006 Ky. App. LEXIS 61 (Ky. Ct. App. 2006).

Because the trial court did not hold a formal hearing, did not enter findings to support its decision to vacate defendant’s public defender appointment, and made no inquiries as to the amount of defendant’s income, nor did it consider any of the other factors listed in KRS 31.120(2), defendant was entitled to a new trial. Baker v. Commonwealth, 228 S.W.3d 24, 2007 Ky. App. LEXIS 188 (Ky. Ct. App. 2007).

Because the issue was whether or not defendant was indigent, not the financial circumstances of his friends or family members, and the fact that defendant might have been able to retain private counsel for the civil action was not dispositive of whether he was entitled to a public defender at his criminal trial, defendant was entitled to a new trial where the trial court denied him a public defender. Baker v. Commonwealth, 228 S.W.3d 24, 2007 Ky. App. LEXIS 188 (Ky. Ct. App. 2007).

Statute allowing for costs to be assessed after sentencing, KRS 23A.205 , allowed for court costs to be waived for “poor persons,” as defined in KRS 453.190(2), but did not give defendant the blanket immunity from costs that defendant suggested was required by KRS 31.110 . Rather, the trial court could consider under KRS 23A.205 both a defendant’s ability to pay at present and in the foreseeable future, whereas statutes such as KRS 31.100 regarding “needy persons” focused on a defendant’s inability to provide payment for representation by an attorney at all and KRS 31.211 provided solely for a “present tense” determination, which did not apply to defendant because defendant had been released from custody and could work to pay for the modest court costs assessed against defendant. Maynes v. Commonwealth, 361 S.W.3d 922, 2012 Ky. LEXIS 20 ( Ky. 2012 ).

It was error to impose fines for defendant’s convictions for fourth-degree assault and possession of marijuana because (1) the trial court previously found defendant to be indigent, under KRS 31.100(3), and (2) KRS 534.040(4) barred the imposition of fines on a person found to be indigent. Wright v. Commonwealth, 391 S.W.3d 743, 2012 Ky. LEXIS 496 ( Ky. 2012 ).

Cited:

Smith v. Commonwealth, 734 S.W.2d 437, 1987 Ky. LEXIS 200 ( Ky. 1987 ), cert. denied, Smith v. Kentucky, 484 U.S. 1036, 108 S. Ct. 762, 98 L. Ed. 2d 778, 1988 U.S. LEXIS 425 (1988).

Opinions of Attorney General.

The definition of “serious crime” should be modified to conform with the decision of the United States Supreme Court in the case of Argersinger v. Hamlin , 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530, 1972 U.S. LEXIS 139 (1972), to include any case where loss of liberty is to be a real sentencing alternative. OAG 72-838 (opinion prior to amendment).

Under subsection (4)(c) (now (4)(d)) of this section, a needy juvenile detained upon a charge which would constitute a “serious crime” if the defendant were an adult is entitled to the full benefit of the public defender act. OAG 72-838 .

If an accused states that he is a needy person unable financially to obtain counsel, counsel should be appointed even though the judge feels the individual can afford to retain counsel; but, if the accused receives legal assistance to which he is not entitled, recovery may be had under KRS 31.150 . OAG 74-503 .

The term “direct expense” is broad enough to cover the payment of the Circuit Court clerk’s fees for preparing the record on appeal in indigent cases. OAG 75-226 .

An inmate at Eastern Kentucky Correctional Complex could not compel the circuit court to provide him with free copies of his closed files; KRS 31.100 et seq. are statutes covering the district public advocate and local programs for providing counsel for indigents, and KRS 31.200(3) provides that expenses incurred in the representation of needy persons confined in a state correctional institution shall be borne by the state Department of Public Advocacy. OAG 90-108 .

Research References and Practice Aids

Kentucky Bench & Bar.

Farley, The Public Defender System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 18.

Kentucky Law Journal.

Abramson, Kentucky’s Future Need for Attorneys, 63 Ky. L.J. 323 (1974-1975).

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

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

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

31.110. Persons entitled to department representation and services — Extent of representation and services — Rights of representation for persons subject to proceedings under KRS Chapter 202C.

  1. A needy person who is being detained by a law enforcement officer, on suspicion of having committed, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime, or who is accused of having committed a public or status offense or who has been committed to the Department of Juvenile Justice or Cabinet for Health and Family Services for having committed a public or status offense as those are defined by KRS 610.010(1), 610.010(2)(a), (b), (c), or 630.020(2) is entitled:
    1. To be represented by an attorney to the same extent as a person having his or her own counsel is so entitled; and
    2. Except as provided in subsection (2)(c) of this section, to be provided with the necessary services and facilities of representation, including investigation and other preparation. The courts in which the defendant is tried shall waive all costs.
  2. A needy person who is entitled to be represented by an attorney under subsection (1) of this section is entitled:
    1. To be counseled and defended at all stages of the matter beginning with the earliest time when a person providing his or her own counsel would be entitled to be represented by an attorney and including revocation of probation or parole;
    2. To be represented in any appeal; and
    3. To be represented in any other post-conviction, or, if a minor under the age of eighteen (18), post-disposition proceeding, including any appeal from a post- conviction or post-disposition action. However, if the department and the court of competent jurisdiction 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, there shall be no further right to be represented by counsel under the provisions of this chapter. In cases involving a minor under the age of eighteen (18), prior to making a determination on whether or not a post- disposition action is a proceeding that a reasonable person with adequate means would be willing to bring at his or her own expense, an attorney with the department shall be granted access to the court file of the minor:
      1. Without the requirement of a formal court order in which the attorney has provided a release signed by the minor or the minor’s legal guardian authorizing the use of the records; and
      2. Notwithstanding any other statute prohibiting the disclosure of a juvenile court file.
  3. A needy person’s right to a benefit under subsection (1) or (2) of this section is not affected by his or her having provided a similar benefit at his or her own expense, or by he or she having waived it, at an earlier stage.
  4. A person, whether a needy person or not, who is a minor under the age of eighteen (18) and who is in the custody of the Department of Juvenile Justice and is residing in a residential treatment center or detention center is entitled to be represented on a legal claim related to his or her confinement involving violations of federal or state statutory rights or constitutional rights. Prior to representation, an attorney with the department shall be granted access to the court file of the minor and residential treatment center or detention center records pertaining to the juvenile:
    1. Without entering an appearance as an attorney of record; and
    2. Notwithstanding any other statute prohibiting the disclosure of a juvenile’s record, including KRS 15A.0651 , 610.320 , 610.340 , or 610.345 .
  5. A person, whether a needy person or not, who is subject to a proceeding under KRS Chapter 202C and is unrepresented at any time shall be entitled to the same rights of representation as a needy person under subsection (1) of this section.

History. Enact. Acts 1972, ch. 353, § 11; 2002, ch. 283, § 11, effective July 15, 2002; 2005, ch. 99, § 101, effective June 20, 2005; 2008, ch. 87, § 15, effective July 15, 2008; 2014, ch. 87, § 3, effective July 15, 2014; 2021 ch. 175, § 23, effective April 1, 2021.

NOTES TO DECISIONS

Analysis

1.Determination of Needy Person.

Because the trial court improperly denied appointment of counsel based upon the mere fact that a property bond had been posted to secure defendant’s release following his indictment, the court failed to apply the factors to determine defendant’s indigency as provided in KRS 31.120 , and the court did not determine whether defendant was in fact indigent, defendant’s conviction for possession was reversed. Tinsley v. Commonwealth, 185 S.W.3d 668, 2006 Ky. App. LEXIS 61 (Ky. Ct. App. 2006).

Because the issue was whether or not defendant was indigent, not the financial circumstances of his friends or family members, and the fact that defendant might have been able to retain private counsel for the civil action was not dispositive of whether he was entitled to a public defender at his criminal trial, defendant was entitled to a new trial where the trial court denied him a public defender. Baker v. Commonwealth, 228 S.W.3d 24, 2007 Ky. App. LEXIS 188 (Ky. Ct. App. 2007).

Although it was error to fail to hold a hearing for a determination in accordance with the requirements set forth in KRS ch. 31 as to whether defendant was entitled to appointed counsel, it was not reversible error as the error was subsequently corrected, and defendant was not unrepresented at any critical stage of the proceedings. Simmons v. Commonwealth, 2007 Ky. App. LEXIS 405 (Ky. Ct. App. Oct. 19, 2007).

Court reversed the imposition of court costs and remanded for a finding whether defendant was a poor person, as defined in KRS 453.190(2), was unable to pay court costs, and would be unable to pay the court costs in the foreseeable future. Smith v. Commonwealth, 361 S.W.3d 908, 2012 Ky. LEXIS 29 ( Ky. 2012 ).

2.Post-Conviction Proceedings.

The provision for appointment of counsel found in RCr 11.42(5) was intended to set the minimum standard for post-conviction relief proceedings; the legislature could and did provide for a more generous policy of appointing counsel for indigents, an action which is entirely consistent with its control of the purse strings of the Commonwealth. Commonwealth v. Ivey, 599 S.W.2d 456, 1980 Ky. LEXIS 220 ( Ky. 1980 ), overruled in part, Fraser v. Commonwealth, 59 S.W.3d 448, 2001 Ky. LEXIS 153 ( Ky. 2001 ).

The public advocacy statutes require the appointment of counsel upon request of a “needy person” to represent him in RCr 11.42 proceedings. Commonwealth v. Ivey, 599 S.W.2d 456, 1980 Ky. LEXIS 220 ( Ky. 1980 ), overruled in part, Fraser v. Commonwealth, 59 S.W.3d 448, 2001 Ky. LEXIS 153 ( Ky. 2001 ).

An RCr 11.42 proceeding is not a direct appeal with a constitutional right to an attorney; such right to counsel for a needy person as exists in an RCr 11.42 proceeding is provided by rule and by statute. Commonwealth v. Stamps, 672 S.W.2d 336, 1984 Ky. LEXIS 257 ( Ky. 1984 ).

Where after examination of the record it was apparent that application for RCr 11.42 relief was an exercise in futility and likewise, remanding the case for appointment of counsel to search for supplementary grounds for RCr 11.42 relief was also an exercise in futility, the trial court’s failure to follow the statutory mandate of this section was harmless error. Commonwealth v. Stamps, 672 S.W.2d 336, 1984 Ky. LEXIS 257 ( Ky. 1984 ).

It was error to dismiss a parolee's appeal from a post-incarceration supervision revocation hearing because (1) the parolee was entitled to counsel, and (2) the parolee was not provided with counsel at the parolee's final revocation hearing, as the parolee had the ability to present additional evidence at the final hearing and had the possibility of an additional “special” hearing wherein witnesses could testify, at which counsel could be as crucial as in a preliminary hearing, at which the parolee had counsel, since the Parole Board could make an entirely different decision than was made at the preliminary hearing based on the additional evidence, so the final hearing was a critical stage of the parole revocation process. Bailey v. Jones, 2017 Ky. App. LEXIS 65 (Ky. Ct. App. Mar. 31, 2017), aff'd in part and rev'd in part, 576 S.W.3d 128, 2019 Ky. LEXIS 216 ( Ky. 2019 ).

Ky. Rev. Stat. Ann. § 31.110(2)(a) creates a statutory right to counsel in post-incarceration supervision revocations and applies to both preliminary and final revocation proceedings. Bailey v. Jones, 2017 Ky. App. LEXIS 65 (Ky. Ct. App. Mar. 31, 2017), aff'd in part and rev'd in part, 576 S.W.3d 128, 2019 Ky. LEXIS 216 ( Ky. 2019 ).

Defendant had no right to counsel under Ky. Rev. Stat. Ann. § 31.110 when facing revocation of post-incarceration supervision because the statute only created a statutory right to be represented by counsel assigned by the Department of Public Advocacy. Jones v. Bailey, 576 S.W.3d 128, 2019 Ky. LEXIS 216 ( Ky. 2019 ).

3.Relief from Present Detention.

The “serious crime” referred to in subsection (1) of this section is the crime which is causing a present detention of the defendant, not some crime committed years ago, the liability for which has been completely discharged. Ray v. Commonwealth, 633 S.W.2d 71, 1982 Ky. App. LEXIS 213 (Ky. Ct. App. 1982).

Where movant was sentenced in 1969 to five years imprisonment for dwelling house breaking, and in 1980 was convicted of being a persistent felony offender, court did not err in denying movant’s request in 1981 that counsel be appointed to represent him pursuant to this section in pursuing his motion to vacate his 1969 judgment of conviction under CR 60.02, as movant was not seeking post-conviction relief from the judgment of conviction for which he was presently being detained, but relief from convictions which occurred 12 years ago. Ray v. Commonwealth, 633 S.W.2d 71, 1982 Ky. App. LEXIS 213 (Ky. Ct. App. 1982).

4.Necessary Services.

The employment of statisticians and mathematicians to examine the representation of recognizable groups on jury venires is not included in necessary services to which an indigent defendant is entitled, especially in the absence of specific knowledge of irregularities. Ford v. Commonwealth, 665 S.W.2d 304, 1983 Ky. LEXIS 315 ( Ky. 1983 ), cert. denied, 469 U.S. 984, 105 S. Ct. 392, 83 L. Ed. 2d 325, 1984 U.S. LEXIS 4318 (U.S. 1984).

Indigent defendants are entitled to “reasonably necessary” expert assistance. Hicks v. Commonwealth, 670 S.W.2d 837, 1984 Ky. LEXIS 222 (Ky.), cert. denied, 469 U.S. 1040, 105 S. Ct. 521, 83 L. Ed. 2d 409, 1984 U.S. LEXIS 4546 (U.S. 1984).

An indigent defendant is entitled to reasonably necessary expert assistance, but trial courts are not required to provide funds to defense experts for fishing expeditions. Simmons v. Commonwealth, 746 S.W.2d 393, 1988 Ky. LEXIS 9 ( Ky. 1988 ), cert. denied, 489 U.S. 1059, 109 S. Ct. 1328, 103 L. Ed. 2d 596, 1989 U.S. LEXIS 1183 (U.S. 1989).

In determining what constitutes a reasonable and necessary indigent expense, at a minimum, a service or facility the use of which is provided for by statute should be considered by a trial court, as a matter of law, to be “reasonable and necessary.” McCracken County Fiscal Court v. Graves, 885 S.W.2d 307, 1994 Ky. LEXIS 120 ( Ky. 1994 ).

It is the duty of trial counsel representing an indigent defendant to move for advance authorization of expenses which he considers properly chargeable to the county; likewise, it is the duty of the trial court to attempt to specifically and timely find that an expense is “reasonable and necessary,” or not. McCracken County Fiscal Court v. Graves, 885 S.W.2d 307, 1994 Ky. LEXIS 120 ( Ky. 1994 ).

Pro se litigants who made a one (1) line request for an investigator in no way established in the letter or in argument before the trial court that funds for an investigator were reasonably necessary. Dillingham v. Commonwealth, 995 S.W.2d 377, 1999 Ky. LEXIS 82 ( Ky. 1999 ), cert. denied, 528 U.S. 1166, 120 S. Ct. 1186, 145 L. Ed. 2d 1092, 2000 U.S. LEXIS 1200 (U.S. 2000).

5.Psychiatric Testimony.

Where the underlying basis for psychiatric testimony was primarily for the penalty phase of murder trial, and not for the defense of the charge, defendant was not entitled to funds for the employment of a psychiatrist to present expert testimony; a defendant does not have a right to a psychiatric fishing expedition at public expense, or an in-depth analysis on matters irrelevant to a legal defense to the crime. Kordenbrock v. Commonwealth, 700 S.W.2d 384, 1985 Ky. LEXIS 263 ( Ky. 1985 ), cert. denied, 476 U.S. 1153, 106 S. Ct. 2260, 90 L. Ed. 2d 704, 1986 U.S. LEXIS 1712 (U.S. 1986).

6.Consistent with KRS 23A.205.

KRS 23A.205 and this section are not inconsistent. Edmonson v. Commonwealth, 725 S.W.2d 595, 1987 Ky. LEXIS 194 ( Ky. 1987 ).

Statute allowing for costs to be assessed after sentencing, KRS 23A.205 , allowed for court costs to be waived for “poor persons,” as defined in KRS 453.190(2), but did not give defendant the blanket immunity from costs that defendant suggested was required by KRS 31.110 . Rather, the trial court could consider under KRS 23A.205 both a defendant’s ability to pay at present and in the foreseeable future, whereas statutes such as KRS 31.100 regarding “needy persons” focused on a defendant’s inability to provide payment for representation by an attorney at all and KRS 31.211 provided solely for a “present tense” determination, which did not apply to defendant because defendant had been released from custody and could work to pay for the modest court costs assessed against defendant. Maynes v. Commonwealth, 361 S.W.3d 922, 2012 Ky. LEXIS 20 ( Ky. 2012 ).

7.Expert Witnesses.

There is no violation of due process in the refusal to provide for expert witnesses where the indigent defendant offers little more than an undeveloped assertion that the requested assistance would be beneficial. Simmons v. Commonwealth, 746 S.W.2d 393, 1988 Ky. LEXIS 9 ( Ky. 1988 ), cert. denied, 489 U.S. 1059, 109 S. Ct. 1328, 103 L. Ed. 2d 596, 1989 U.S. LEXIS 1183 (U.S. 1989).

Where it was clear from the record that the defense demonstrated “reasonable necessity,” the defense was entitled to the assistance of an independent pathologist and an independent arson expert or the equivalent and the denial of the motion to authorize funds to provide such assistance constituted prejudicial error. Sommers v. Commonwealth, 843 S.W.2d 879, 1992 Ky. LEXIS 137 ( Ky. 1992 ).

Trial court did not abuse its discretion in denying defense counsel’s request for fund under KRS 31.110 for an expert who would undermine the sufficiency of the investigation, since this could be, and was, reached by cross-examination of the investigating officers into what procedures were and were not taken in the investigation. Davenport v. Commonwealth, 177 S.W.3d 763, 2005 Ky. LEXIS 324 ( Ky. 2005 ), cert. denied, 549 U.S. 827, 127 S. Ct. 40, 166 L. Ed. 2d 46, 2006 U.S. LEXIS 5924 (U.S. 2006).

Defendant’s request for additional expert funding was properly denied because defendant had already availed himself of a state psychiatric evaluation and the request was not pleaded with specificity. Benjamin v. Commonwealth, 266 S.W.3d 775, 2008 Ky. LEXIS 233 ( Ky. 2008 ).

Trial court did not abuse its discretion by denying defendant funds for additional expert witnesses because it had already awarded defendant funds under KRS 31.110(1)(b) for a psychiatrist with specialties in psychopharmacology and neuropsychiatry, and the two additional experts defendant sought were psychologists, and it was unlikely that they would be more qualified to interpret scan results than the psychiatrist. That defendant appeared to be unsatisfied with the psychiatrist’s conclusions did not mean that his due process rights were violated when the trial court refused to provide him with additional experts. Barnett v. Commonwealth, 317 S.W.3d 49, 2010 Ky. LEXIS 118 ( Ky. 2010 ).

In the parents’ appeal of the trial court’s adjudication orders finding their children to be neglected or abused, the court held that indigent parents were entitled to funding for reasonably necessary expert assistance under this section, and it remanded the cases for a determination of whether the parents were entitled to expert funding under the test set forth in the Benjamin case. K.S. v. Commonwealth, 2019 Ky. App. LEXIS 191 (Ky. Ct. App. Oct. 25, 2019, sub. op., 2019 Ky. App. Unpub. LEXIS 916 (Ky. Ct. App. Oct. 25, 2019).

Trial court reversibly erred when it denied defendant’s motion for expert funds because the motion was pleaded with requisite specificity and it demonstrated reasonable necessity for the expert funds it sought. It identified the expert, it sought expert assistance on whether the victim died as a result of homicide or suicide, and based on the fact that the police’s investigation was insufficient to convince the medical examiner of the victim’s cause of death there was reason to believe that expert assistance could have helped the defense explain why the investigation was insufficient to prove beyond a reasonable doubt that the victim was murdered. Daniel v. Commonwealth, 607 S.W.3d 626, 2020 Ky. LEXIS 304 ( Ky. 2020 ).

8.Payment to Private Attorney.

The purpose of KRS Chapter 31 is to provide indigent defendants access to an attorney and nothing in the statute prohibits a trial judge from approving the payment of expenses incurred by an attorney in the defense of an indigent, regardless of whether the attorney is “truly” pro bono or an appointed public defender; therefore irreparable injury will not result to the local public defender system if the expenses incurred by the volunteer defense team in the representation of an indigent defendant are paid from funds earmarked to the public defenders. Kenton-Gallatin-Boone Public Defender, Inc., v. Stephens, 819 S.W.2d 37, 1991 Ky. LEXIS 176 ( Ky. 1991 ).

9.Bona Fide Fees.

Any fee paid to defense counsel is indeed bona fide and so long as the recipient of that fee continues as counsel, the defendant is disqualified from any indigency status, because to do otherwise would invite defendants to impoverish themselves by payments to attorneys and have the Commonwealth pay all other costs. Morton v. Commonwealth, 817 S.W.2d 218, 1991 Ky. LEXIS 108 ( Ky. 1991 ).

10.Removal from Original Attorney.

After defendant sought and obtained indigency status, it was not error for the court to remove defendant’s original attorney from the case and transfer the case to the public defender’s office, even when the original attorney offered to continue his representation pro bono. Morton v. Commonwealth, 817 S.W.2d 218, 1991 Ky. LEXIS 108 ( Ky. 1991 ).

11.Psychological Examination.

A defendant is not entitled to an additional state-provided psychological examination or funds to hire additional experts simply because the initial evaluation is contrary to his defense; therefore, where defendant was afforded the constitutionally and statutorily required expert assistance, the trial court’s refusal to provide additional examinations or funds did not violate his due process rights. Crawford v. Commonwealth, 824 S.W.2d 847, 1992 Ky. LEXIS 29 ( Ky. 1992 ).

12.Medical Examination.

It was not error for the trial court to refuse to order state funds for a gynecologist and order that rape victim submit to a second gynecological examination, where within hours of the incident, the victim had a gynecological examination performed at a local hospital and prior to ruling on defendant’s request, the trial judge ordered that a second physician evaluate the medical findings of the initial examining physician and the expert’s response was that an additional examination would not be beneficial. Crawford v. Commonwealth, 824 S.W.2d 847, 1992 Ky. LEXIS 29 ( Ky. 1992 ).

13.Civil Contempt Proceedings.

An indigent person has a right to appointed counsel in civil contempt proceedings prior to the execution of an order of incarceration. Lewis v. Lewis, 875 S.W.2d 862, 1993 Ky. LEXIS 78 ( Ky. 1993 ).

14.When Authority to Represent Vests.

The provisions of subsection (1) of this section, RCr 2.14, KRS 31.120(1), and KRS 31.150 signal an unmistakable message that the intent of the legislature is to provide meaningful, rather than nominal protection of the rights of the indigent. Thus, the authority of the Public Defender to act in a case vests at the earliest point at which a person is entitled to counsel (i.e. custodial interrogation), but not until a claim, without further proof, is made of a need for public assistance by the accused. West v. Commonwealth, 887 S.W.2d 338, 1994 Ky. LEXIS 102 ( Ky. 1994 ), overruled in part, Commonwealth v. Terrell, 464 S.W.3d 495, 2015 Ky. LEXIS 69 ( Ky. 2015 ).

15.DNA Testing.

Where the trial court stated that defendant would be given ample notice of the date DNA testing of blood stains found on his clothing and that defendant would be allowed to have any appropriate expert to observe the testing of such evidence and also be granted funds necessary to employ an expert for the purpose of observing the DNA analysis of the evidence, the Court of Appeals’ denial of defendant’s writ of prohibition or mandamus as to such testing was proper; the time for judicial determination as to admissibility of a scientific test result is after testing has been completed and the result offered as evidence. If the trial court holds such result to be admissible and the defendant is convicted, redress is through the process of appeal. McKinney v. Venters, 934 S.W.2d 241, 1996 Ky. LEXIS 78 ( Ky. 1996 ).

Because the trial court did not have authority to rescind its prior orders finding that defendant was entitled to KRS ch. 31 funds, defendant was entitled to have DNA testing and analysis paid pursuant to KRS 31.110(1)(b) notwithstanding the fact that defendant was represented by private counsel. Bonner v. Commonwealth, 2011 Ky. App. LEXIS 182 (Ky. Ct. App. Aug. 19, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 948 (Ky. Ct. App. Aug. 19, 2011).

16.Order Imposing Costs Vacated.

Since court costs had to be waived for indigent defendants pursuant to KRS 31.110(1)(b), the provision in the trial court’s judgment imposing court costs on defendant, who was indigent, had to be vacated. Ladriere v. Commonwealth, 329 S.W.3d 278, 2010 Ky. LEXIS 259 ( Ky. 2010 ).

Cited:

Gross v. Commonwealth, 648 S.W.2d 853, 1983 Ky. LEXIS 2 34 ( Ky. 1983 ); Perry County Fiscal Court v. Commonwealth, 674 S.W.2d 954, 1984 Ky. LEXIS 2 43 ( Ky. 1984 ); Hunter v. Commonwealth, 869 S.W.2d 719, 1994 Ky. LEXIS 14 ( Ky. 1994 ); Talbott v. Commonwealth, 968 S.W.2d 76, 1998 Ky. LEXIS 41 ( Ky. 1998 ); Bowling v. Commonwealth, 80 S.W.3d 405, 2002 Ky. LEXIS 52 ( Ky. 2002 ); Goncalves v. Commonwealth, 404 S.W.3d 180, 2013 Ky. LEXIS 2 ( Ky. 2013 ).

Notes to Unpublished Decisions

1.Psychological Examination.

Unpublished decision: Trial court properly denied defendant’s request for funds to retain an independent psychiatrist because defendant failed to demonstrate that such funds were reasonably necessary to the defense. Defendant’s motion for funds contained only conclusory assertions that employment of a forensic psychiatrist was an absolute necessity to determine the mental health defenses, including mental illness and the IQ of the defendant. St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

Unpublished decision: Trial court properly denied defendant’s request for funds to retain an independent psychiatrist because defendant failed to demonstrate that such funds were reasonably necessary to the defense. Defendant’s motion for funds contained only conclusory assertions that employment of a forensic psychiatrist was an absolute necessity to determine the mental health defenses, including mental illness and the IQ of the defendant. St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

Opinions of Attorney General.

A county which elects to provide an indigent representation plan under KRS 31.160 has the obligation to pay for such expenses as transcripts, other expenses of appeals, expert witness fees, investigative services, interpreters, and preparation costs such an attorney travel, phone calls, copying, etc., if the expenses are found to be “necessary expenses” of representation. OAG 82-96 .

Service of process and other court costs are to be waived for indigent defendants; the practical effect of this is that no one is obligated to pay these expenses. OAG 82-96 .

Research References and Practice Aids

Kentucky Bench & Bar.

Farley, The Public Defender System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 18.

Kentucky Law Journal.

Kentucky Law Survey, Collier, Criminal Procedure, 68 Ky. L.J. 655 (1979-1980).

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

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

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

Notes, McGrath, Sommers v. Commonwealth: An Indigent Criminal Defendant’s Right to Publicly Funded Expert Assistance Other than the Assistance of Counsel, 84 Ky. L.J. 387 (1995-96).

Article: Deferring Ineffectiveness Claims to Collateral Review: Ensuring Equal Access and a Right to Appointed Counsel, 98 Ky. L.J. 301 (2009/2010).

Note: Non-Prisoner Pro Se Litigation in the United States District Court for the Eastern District of Kentucky: Analyzing 2004 and 2007 Cases from Filing to Termination, 99 Ky. L.J. 601 (2010/2011).

31.115. Appeal by public advocacy attorney. [Repealed and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1976 (Ex. Sess.), ch. 24, § 1; 1978, ch. 155, § 28, effective June 17, 1978) was repealed and reenacted as KRS 31.219 by Acts 2002, ch. 283, § 16, effective July 15, 2002.

31.120. Determination of whether person needy — Factors for determination — Affidavit of indigency.

    1. The determination of whether a person covered by KRS 31.110 is a needy person shall be deferred no later than his or her first appearance in court or in a suit for payment or reimbursement under KRS 31.211 , whichever occurs earlier. (1) (a) The determination of whether a person covered by KRS 31.110 is a needy person shall be deferred no later than his or her first appearance in court or in a suit for payment or reimbursement under KRS 31.211 , whichever occurs earlier.
    2. The court of competent jurisdiction in which the case is pending shall then determine, with respect to each step in the proceedings, whether he or she is a needy person. However, nothing shall prevent appointment of counsel at the earliest necessary proceeding at which the person is entitled to counsel, upon declaration by the person that he or she is needy under the terms of this chapter. In that event, the person involved shall be required to make reimbursement for the representation if he or she later is determined not a needy person under the terms of this chapter.
    3. A person who, after conviction, is sentenced while being represented by a public defender shall continue to be presumed a needy person, and the court, at the time of sentencing, shall enter an Order In Forma Pauperis for purposes of appeal without having to show further proof of continued indigency, unless the court finds good cause after a hearing to determine that the defendant should not continue to be considered an indigent person.
  1. In determining whether a person is a needy person and in determining the extent of his or her and, in the case of an unemancipated minor under KRS 31.100(5)(c), his or her custodial parents’ or guardians’ inability to pay, the court concerned shall consider such factors as:
    1. Income;
    2. Source of income;
    3. Property owned;
    4. Number of motor vehicles owned and in working condition;
    5. Other assets;
    6. Outstanding obligations;
    7. The number and ages of his or her dependents;
    8. The poverty level income guidelines compiled and published by the United States Department of Labor;
    9. Complexity of the case;
    10. Amount a private attorney charges for similar services;
    11. Amount of time an attorney would reasonably spend on the case; and
    12. Payment of money bail, other than a property bond of another, whether deposited by the person or another, to secure the person’s release from confinement on the present charge of which he or she stands accused or convicted; and
    13. Any other circumstances presented to the court relevant to financial status.

      Release on bail, or any other method of release provided in KRS Chapter 431, shall not necessarily prevent him or her from being a needy person. In each case, the person and, if an unemancipated minor under KRS 31.100(5)(c) and (d), his or her custodial parent or guardian, subject to the penalties for perjury, shall certify by affidavit of indigency which shall be compiled by the pretrial release officer, as provided under KRS Chapter 431 and Supreme Court Rules or orders promulgated pursuant thereto, the material factors relating to his or her ability to pay in the form the Supreme Court prescribes.

  2. The affidavit of indigency, to be subscribed and sworn to by the person and, in the case of an unemancipated minor under KRS 31.100(5)(c), by his or her custodial parent or guardian, shall be as set out herein and contain, at a minimum, the following information:

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“Commonwealth of Kentucky County of Affiant , being first duly sworn says that he or she is not now represented by private counsel and that he or she does not have the money or assets out of which to employ one; that he or she is indigent and requests the court to appoint counsel. Affiant states that he or she is presently (fill in the blank with one (1) of the following: unemployed, employed full-time, employed part-time, or employed on a seasonal basis) Affiant states that his or her weekly income is ; and that he or she receives (circle any of the following which apply and fill in the blank if necessary) Welfare Food stamps Social Security Workers’ compensation Unemployment Retirement disability Other Affiant states that he or she owns the following property: Description Value ; Affiant states that he or she has the following dependents: Name Age Relationship ; Affiant states that he or she has the following obligations: To whom owed Amount owing Affiant understands and has been advised that he or she may be held responsible for the payment of part of the cost of legal representation. Affiant also understands that the cost of payment for legal representation will be determined by the judge after considering affiant’s financial condition, what private attorneys charge for similar services, how complicated the affiant’s case is, and the amount of time affiant’s attorney spends on affiant’s case. Signature of affiant Subscribed and sworn to before me this , day of , 20 Signature and title of officer administering the oath

Perjury Warning: Affiant understands that any person knowingly making false statements in the above affidavit shall be subject to the penalties for perjury under KRS Chapter 523, the maximum penalty for which is five (5) years’ imprisonment. Affiant declares under penalty of perjury that he or she has read the above affidavit and that it is true and complete to the best of his or her knowledge.”

History. Enact. Acts 1972, ch. 353, § 12; 1976, ch. 258, § 1; 1976 (Ex. Sess.), ch. 24, § 3; 1978, ch. 155, § 29, effective June 17, 1978; 1980, ch. 188, § 11, effective July 15, 1980; 1980, ch. 334, § 1, effective July 15, 1980; 1986, ch. 104, § 2, effective July 15, 1986; 1992, ch. 241, § 2, effective July 14, 1992; 1994, ch. 395, § 2, effective July 15, 1994; 1998, ch. 491, § 3, effective July 15, 1998; 2002, ch. 283, § 12, effective July 15, 2002; 2014, ch. 87, § 4, effective July 15, 2014.

NOTES TO DECISIONS

1.Application.

Because the trial court improperly denied appointment of counsel based upon the mere fact that a property bond had been posted to secure defendant’s release following his indictment, the court failed to apply the factors to determine defendant’s indigency as provided in KRS 31.120 , and the court did not determine whether defendant was in fact indigent, defendant’s conviction for possession was reversed. Tinsley v. Commonwealth, 185 S.W.3d 668, 2006 Ky. App. LEXIS 61 (Ky. Ct. App. 2006).

If a defendant raises the issue of indigency, a hearing must be held thereon for a determination in accordance with the requirements set forth in KRS ch. 31, and the court must enter findings at the conclusion thereof. If the findings support indigency, counsel shall be appointed. If the findings do not support indigency, and the defendant persists in not employing counsel, he shall be deemed to have waived counsel, whereupon he is entitled to the protections of Faretta; should the trial court fail in the foregoing, the trial is defective. Tinsley v. Commonwealth, 185 S.W.3d 668, 2006 Ky. App. LEXIS 61 (Ky. Ct. App. 2006).

Because the trial court did not hold a formal hearing, did not enter findings to support its decision to vacate defendant’s public defender appointment, and made no inquiries as to the amount of defendant’s income, nor did it consider any of the other factors listed in KRS 31.120(2), defendant was entitled to a new trial. Baker v. Commonwealth, 228 S.W.3d 24, 2007 Ky. App. LEXIS 188 (Ky. Ct. App. 2007).

Because the issue was whether or not defendant was indigent, not the financial circumstances of his friends or family members, and the fact that defendant might have been able to retain private counsel for the civil action was not dispositive of whether he was entitled to a public defender at his criminal trial, defendant was entitled to a new trial where the trial court denied him a public defender. Baker v. Commonwealth, 228 S.W.3d 24, 2007 Ky. App. LEXIS 188 (Ky. Ct. App. 2007).

2.Attorney’s Fees.

Once the court determined that defendant was ineligible for public defender assistance as a result of his ownership of real property, pursuant to KRS 31.120(3)(a), the Department of Public Advocacy had no obligation to pay attorney’s fees. Department of Public Advocacy Commonwealth v. Patrick, 765 S.W.2d 36, 1989 Ky. App. LEXIS 17 (Ky. Ct. App. 1989).

The Circuit Court lacked both statutory authority and jurisdiction to order the Department of Public Advocacy to pay attorney’s fees when the court had ruled prior to the time of trial that defendant was no longer eligible for a public defender and when no subsequent order had reversed that eligibility determination. Department of Public Advocacy Commonwealth v. Patrick, 765 S.W.2d 36, 1989 Ky. App. LEXIS 17 (Ky. Ct. App. 1989).

3.When Authority to Represent Vests.

The provisions of subsection (1) of this section, KRS 31.110(1), RCr 2.14, and former KRS 31.150 (now repealed) signal an unmistakable message that the intent of the legislature is to provide meaningful, rather than nominal protection of the rights of the indigent. Thus, the authority of the Public Defender to act in a case vests at the earliest point at which a person is entitled to counsel (i.e. custodial interrogation), but not until a claim, without further proof, is made of need for public assistance by the accused. West v. Commonwealth, 887 S.W.2d 338, 1994 Ky. LEXIS 102 ( Ky. 1994 ), overruled in part, Commonwealth v. Terrell, 464 S.W.3d 495, 2015 Ky. LEXIS 69 ( Ky. 2015 ).

4.Recoupment Fee.

The imposition of a recoupment fee after a defendant is found not guilty is neither unreasonable nor unconstitutional; a recoupment fee is not a penalty and is only assessed after the representation is complete, and only where the defendant can afford to pay a percentage of the defense costs on reasonable terms. Donovan v. Commonwealth, 60 S.W.3d 581, 2001 Ky. App. LEXIS 13 (Ky. Ct. App. 2001).

Cited:

County of Harlan v. Appalachian Reg’l Healthcare, Inc., 85 S.W.3d 607, 2002 Ky. LEXIS 188 ( Ky. 2002 ).

Opinions of Attorney General.

If an accused states that he is a needy person unable financially to obtain counsel, counsel should be appointed even though the judge feels the individual can afford to retain counsel; but, if the accused receives legal assistance to which he is not entitled, recovery may be had under KRS 31.150 . OAG 74-503 .

Any prisoner data or paperwork that is necessary to get for the prisoners the attention and possibly medical care by a licensed physician is a responsibility of the jailer, or his staff, having proper custody of such prisoners; the same is true where the court, under this section, requires certain paperwork relating to indigency. KRS 71.040 explicitly requires the jailer to treat the prisoners humanely; that human treatment would include any necessary paperwork or assistance in paperwork in connection with their medical treatment and court determination of indigency. OAG 83-381 .

Research References and Practice Aids

Kentucky Bench & Bar.

Farley, The Public Defender System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 18.

Kentucky Law Journal.

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

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

31.125. Determination of indigency of child’s custodian — Payment for defense of child — Exceptions.

  1. If court-appointed counsel has been provided to a juvenile in any proceeding, the court appointing the counsel shall:
    1. Ascertain who has legal custody of the child; and
    2. Ascertain whether the person who has legal custody of the child is indigent and would be entitled to representation pursuant to this chapter if the person having custody of the child were a criminal defendant.
    1. If it is determined that the child has two (2) living parents or two (2) living guardians, the determination made pursuant to paragraph (b) of subsection (1) of this section shall be made with regard to both parents or both guardians to the extent practical. (2) (a) If it is determined that the child has two (2) living parents or two (2) living guardians, the determination made pursuant to paragraph (b) of subsection (1) of this section shall be made with regard to both parents or both guardians to the extent practical.
    2. If it is determined that both parents or both guardians of a child before the court would not qualify for public defense services as an indigent pursuant to this chapter, then both parents or both guardians shall be ordered to pay for the defense of the child if it is practical to bring both parents or guardians before the court.
    3. If it is determined that one (1) parent or guardian of a child before the court would not qualify for public defense services as an indigent pursuant to this chapter, then that parent or guardian shall be ordered to pay for the defense of the child if it is possible to bring the parent or guardian before the court.
  2. Absent a showing of indigency:
    1. The fact that a child’s parents are divorced may relieve a noncustodial parent of the obligation to pay for defense of the child.
    2. The fact that a child is in the custody of a public agency shall relieve a parent from paying for the child’s defense.
  3. The provisions of this section shall not apply if the parent or guardian was the victim of the juvenile’s alleged criminal act, or if the parent or guardian is the complainant in the delinquency proceeding.
  4. Subsections (1) to (3) of this section shall not apply to public representation of a child from the time he would first be entitled to counsel, if an adult, until a determination of indigency is made as provided in this section.

History. Enact. Acts 1996, ch. 358, § 5, effective July 15, 1997.

31.130. Assignment of substitute attorney. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 353, § 13; 1978, ch. 155, § 30, effective June 17, 1978) was repealed by Acts 2002, ch. 283, § 16, effective July 15, 2002.

31.140. Waiver of right to counsel.

A person who has been appropriately informed under KRS 31.120 may waive in writing, or by other record, any right provided by this chapter, if the court concerned, at the time of or after waiver, finds of record that he has acted with full awareness of his rights and of the consequences of a waiver and if the waiver is otherwise according to law. The court shall consider such factors as the person’s age, education, and familiarity with English, and the complexity of the crime involved.

History. Enact. Acts 1972, ch. 353, § 14.

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).

31.150. Recovery of money wrongfully received. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 353, § 15; 1974, ch. 358, § 6; 1976, ch. 177, § 6; 1976 (Ex. Sess.), ch. 24, § 4; 1978, ch. 155, § 31, effective June 17, 1978; 1986, ch. 104, § 3, effective July 15, 1986) was repealed by Acts 2002, ch. 283, § 20, effective July 15, 2002.

31.160. Provisions for joint representation by counties, cities and districts. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 353, § 16; 1978, ch. 155, § 32, effective June 17, 1978; 1982, ch. 377, § 4, effective July 15, 1982) was repealed by Acts 2002, ch. 283, § 20, effective July 15, 2002.

31.165. Conformity to rules and regulations. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 358, § 7; 1978, ch. 155, § 33, effective June 17, 1978) was repealed, reenacted and amended as KRS 31.085 by Acts 2002, ch. 283, § 9, effective July 15, 2002.

31.170. Office for public advocacy — Establishment by fiscal court. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section was repealed, reenacted and amended as KRS 31.071 by Acts 2002, ch. 283, § 8, effective July 15, 2002.

31.180. Facilities and services available to public advocates. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 353, § 18; 1974, ch. 358, § 10; 1978, ch. 155, § 35, effective June 17, 1978) was repealed by Acts 2002, ch. 283, § 20, effective July 15, 2002. For present law see KRS 31.185 .

31.185. Facilities available to department — Ex parte request for funds for representation — Funding responsibility — Finance and Administration special account and payment.

  1. Any defending attorney operating under the provisions of this chapter is entitled to use the same state facilities for the evaluation of evidence as are available to the attorney representing the Commonwealth. If he or she considers their use impractical, the court of competent jurisdiction in which the case is pending may authorize the use of private facilities to be paid for on court order from the special account of the Finance and Administration Cabinet.
  2. The defending attorney may request to be heard ex parte and on the record with regard to using private facilities under subsection (1) of this section. If the defending attorney so requests, the court shall conduct the hearing ex parte and on the record.
  3. Any direct expense, including the cost of a transcript or bystander’s bill of exceptions or other substitute for a transcript that is necessarily incurred in representing a needy person under this chapter, are charges against the county, urban-county government, charter county government, unified local government, or consolidated local government on behalf of which the service is performed and shall be paid from the special account established in subsection (4) of this section and in accordance with procedures provided in subsection (5) of this section. However, a charge under this subsection shall not exceed the established rate charged by the Commonwealth and its agencies.
  4. The consolidated local government, charter county government, unified local government, fiscal court of each county, or legislative body of an urban-county government shall annually appropriate twelve and a half cents ($0.125) per capita of the population of the county, as determined by the Council of Local Governments’ most recent population statistics, to a special account to be administered by the Finance and Administration Cabinet to pay court orders entered against counties pursuant to subsection (1) or (3) of this section. The funds in this account shall not lapse and shall remain in the special account.
  5. The Finance and Administration Cabinet shall pay all court orders entered pursuant to subsection (1) or (3) of this section from the special account until the funds in the account are depleted. If in any given year the special account, including any funds from prior years, is depleted and court orders entered against counties pursuant to subsection (1) or (3) of this section for that year or any prior year remain unpaid, the Finance and Administration Cabinet shall pay those orders from the Treasury in the same manner in which judgments against the Commonwealth and its agencies are paid.
  6. Expenses incurred in the representation of needy persons confined in a state correctional institution shall be paid from the special account established in subsection (4) of this section and in accordance with the procedures provided in subsection (5) of this section.
  7. Only court orders entered after July 15, 1994, shall be payable from the special account administered by the Finance and Administration Cabinet or from the Treasury as provided in subsections (4) and (5) of this section.

History. Enact. Acts 1974, ch. 358, § 11; 1994, ch. 395, § 4, effective July 15, 1994; 1998, ch. 491, § 5, effective July 15, 1998; 2002, ch. 283, § 13, effective July 15, 2002; 2002, ch. 346, § 8, effective July 15, 2002; 2014, ch. 87, § 5, effective July 15, 2014.

NOTES TO DECISIONS

1.Facilities.

The reference to “facilities” in this section is intended to embrace more than buildings or equipment and includes individuals, such as ballistics experts, who are trained to evaluate evidence. Perry County Fiscal Court v. Commonwealth, 674 S.W.2d 954, 1984 Ky. LEXIS 243 ( Ky. 1984 ).

Considering the legislative intent expressed in this section, the furnishing of nonstate facilities for the evaluation of evidence in appropriate circumstances is a necessary governmental expense which must be met by counties. Perry County Fiscal Court v. Commonwealth, 674 S.W.2d 954, 1984 Ky. LEXIS 243 ( Ky. 1984 ).

The defendant was not denied a fair trial by the refusal of the trial judge to order funds for a crime scene or ballistics expert, where Commonwealth facilities were available to him for this use. Smith v. Commonwealth, 734 S.W.2d 437, 1987 Ky. LEXIS 200 ( Ky. 1987 ), cert. denied, 484 U.S. 1036, 108 S. Ct. 762, 98 L. Ed. 2d 778, 1988 U.S. LEXIS 425 (U.S. 1988).

1.5.Use of State Facilities.

Defendant failed to present a sufficient connection to the robbery to show his verdict or sentence would have been more favorable if the court had ordered DNA testing, as the connection of the bandanas, found in an accomplice's purse in a car that was not used during the robbery, in time, place, and circumstance to the underlying crime were remote and lacked any probative value. Geary v. Commonwealth, 490 S.W.3d 354, 2016 Ky. LEXIS 254 ( Ky. 2016 ).

2.Payment for Private Facilities.

Where defense counsel had engaged a clinical psychologist to visit and examine the defendant while he was in jail awaiting trial, but before the counsel had filed a notice of appearance, and without trial court authorization for the use of such private facilities, and where it was not clear that defense counsel had been acting as public advocates at the time the psychologist was engaged, the county fiscal court would not be required to reimburse the public advocates office for the expense of hiring the psychologist since prior authorization is a prerequisite to payment. Young v. Commonwealth, 585 S.W.2d 378, 1979 Ky. LEXIS 269 ( Ky. 1979 ).

When state facilities were available to and actually used by the defendant, the defendant did not establish that the lower court abused its discretion in denying payment for private psychiatric facilities, where nothing had been filed by the defendant to indicate that he intended to raise insanity as a defense, and the defendant’s mental health records were filed on a sealed basis, on his own request, to be opened only for appellate review. Todd v. Commonwealth, 716 S.W.2d 242, 1986 Ky. LEXIS 290 ( Ky. 1986 ).

While Ky. Rev. Stat. Ann. § 31.185(1) gives discretion to the trial court in allotting funds for private facilities or expert witnesses, such discretion cannot be deemed to be unfettered considering Ake v. Oklahoma, 470 U.S. 68 (1985), and Binion v. Commonwealth, 891 S.W.2d 383 ( Ky. 1995 ). Conley v. Commonwealth, 599 S.W.3d 756, 2019 Ky. LEXIS 213 ( Ky. 2019 ).

3.Designated Payor.

There is no ambiguity in construing former KRS 31.200(3) (now repealed) and this section together; it is clear that the trial court may authorize the payment of fees for necessary expert witnesses by the county, rather than the Department of Public Advocacy, in all counties, unless the circumstances are such that KRS 31.200(3) would require otherwise. Perry County Fiscal Court v. Commonwealth, 674 S.W.2d 954, 1984 Ky. LEXIS 243 ( Ky. 1984 ).

4.Expenses.

Ky. Rev. Stat. Ann. § 31.185(1), despite the “defending attorney” language, applied in the context of post-conviction petitioners, provided that a trial judge first determined that the petition set forth allegations sufficient to necessitate an evidentiary hearing on a request for public funds. Commonwealth v. Grise, 558 S.W.3d 923, 2018 Ky. LEXIS 433 ( Ky. 2018 ).

5.—Reasonable and Necessary.

In determining what constitutes a reasonable and necessary indigent expense, at a minimum, a service or facility the use of which is provided for by statute should be considered by a trial court, as a matter of law, to be “reasonable and necessary.” McCracken County Fiscal Court v. Graves, 885 S.W.2d 307, 1994 Ky. LEXIS 120 ( Ky. 1994 ).

It is the duty of trial counsel representing an indigent defendant to move for advance authorization of expenses which he considers properly chargeable to the county; likewise, it is the duty of the trial court to attempt to specifically and timely find that an expense is “reasonable and necessary,” or not. McCracken County Fiscal Court v. Graves, 885 S.W.2d 307, 1994 Ky. LEXIS 120 ( Ky. 1994 ).

The hours indigent defendant’s expert witness spent waiting outside the courtroom to testify by avowal were not necessary expenses properly charged to county. McCracken County Fiscal Court v. Graves, 885 S.W.2d 307, 1994 Ky. LEXIS 120 ( Ky. 1994 ).

The time indigent defendant’s expert witness spent in the the presence of the state’s expert psychologist interviewing the defendant, as provided by KRS 504.080(5), was a necessary expense properly chargeable to county. McCracken County Fiscal Court v. Graves, 885 S.W.2d 307, 1994 Ky. LEXIS 120 ( Ky. 1994 ).

Whether indigent defendants are represented by local public advocates (under a KRS 31.160 plan) or by state public advocates is irrelevant to a county’s liability to pay for those expenses which a trial court considers to be reasonable and necessary, unless a statute directs otherwise. McCracken County Fiscal Court v. Graves, 885 S.W.2d 307, 1994 Ky. LEXIS 120 ( Ky. 1994 ).

The special fund created in KRS 31.185(4) can be used to pay out-of-county witness expenses for indigent post-conviction petitioners, provided that a court has found that: (1) the petitioner’s post-conviction petition raises an issue that cannot be resolved without an evidentiary hearing, and (2) the proposed out-of-county witness’s live testimony at the evidentiary hearing is necessary for a full presentation of the petitioner’s case. Hodge v. Coleman, 244 S.W.3d 102, 2008 Ky. LEXIS 14 ( Ky. 2008 ).

Travel expenses for indigent postconviction petitioners’ witnesses who reside out-of-county are to be paid from the special fund established by KRS 31.185(4)-(5) and are to be governed by the same general rules, regulations, and limits that are applicable to out-of-county witnesses called on behalf of the Commonwealth, regardless of their financial status. Hodge v. Coleman, 244 S.W.3d 102, 2008 Ky. LEXIS 14 ( Ky. 2008 ).

Because indigent postconviction petitioners are entitled to public funds under KRS 31.185 for the travel expenses of out-of-county witnesses in cases where a court has determined that an evidentiary hearing is necessary to resolve a postconviction motion and where the appearance of such witnesses is necessary, petitioner was entitled to a writ of mandamus to the trial court in order to determine if the testimony of the witnesses was necessary. Mills v. Messer, 254 S.W.3d 814, 2008 Ky. LEXIS 155 ( Ky. 2008 ).

Ex parte order authorizing funding for a private expert was not erroneous, where trial court’s order indicated that defendant must have made a sufficient showing of unavailability of state services and of reasonable necessity for the hiring of the private expert. Commonwealth v. Wooten, 269 S.W.3d 857, 2008 Ky. LEXIS 298 ( Ky. 2008 ).

Trial court reversibly erred when it denied defendant’s motion for expert funds because the motion was pleaded with requisite specificity and it demonstrated reasonable necessity for the expert funds it sought. It identified the expert, it sought expert assistance on whether the victim died as a result of homicide or suicide, and based on the fact that the police’s investigation was insufficient to convince the medical examiner of the victim’s cause of death there was reason to believe that expert assistance could have helped the defense explain why the investigation was insufficient to prove beyond a reasonable doubt that the victim was murdered. Daniel v. Commonwealth, 607 S.W.3d 626, 2020 Ky. LEXIS 304 ( Ky. 2020 ).

6.Mental Health Expert.
7.— When to be Provided.

Where there was a reasonable basis on which to determine whether an indigent defendant was suffering from insanity or acting from a diminished capacity during the commission of the crime and where the defendant was entitled to, under this section and former KRS 31.200 (now repealed), either the appointment of, or the funds necessary to, employ a competent mental health expert for assistance in the evaluation and presentation of his defense, KRS 504.070 and 504.080 provide for such examination by either a psychologist or psychiatrist appointed by the court. Binion v. Commonwealth, 891 S.W.2d 383, 1995 Ky. LEXIS 11 ( Ky. 1995 ).

Trial judge abused his discretion by ordering the Kentucky Finance and Administration Cabinet to pay for a private expert of defendant’s choosing to conduct a mental retardation evaluation of defendant, who was sentenced to death for the robberies and murders of three (3) persons, without the requisite showing under KRS 31.185 that use of a state facility was somehow impractical in the case. Commonwealth v. Paisley, 201 S.W.3d 34, 2006 Ky. LEXIS 241 ( Ky. 2006 ), writ denied sub nom. White v. Payne, 2010 Ky. LEXIS 192 (Ky. Aug. 26, 2010).

8.Evaluation

Petitioner was not entitled to a writ of prohibition on the basis that a judge failed to comply with the court’s earlier mandate by ordering an evaluation by the Kentucky Correctional Psychiatric Center (KCPC) without first making a finding that the use of the state facilities was not impractical. While the order did not specifically address the mandate, the judge’s finding that KCPC was capable of providing a competent mental retardation evaluation of petitioner was the functional equivalent of a finding that the use of KCPC was not impractical, and thus, a mental evaluation by the facility was not precluded by KRS 31.185(1). White v. Payne, 2010 Ky. LEXIS 192 (Ky. Aug. 26, 2010), sub. op., 332 S.W.3d 45, 2010 Ky. LEXIS 314 ( Ky. 2010 ), modified in part, 2011 Ky. LEXIS 100 (Ky. Mar. 24, 2011).

Writ of prohibition was denied where a death row inmate was seeking to prevent a judge from enforcing an order requiring a mental retardation evaluation by the Kentucky Correctional Psychiatric Center (KCPC) because this was not precluded by KRS 31.185(3) where there was a functional finding that the use of KCPC was not impractical. Even assuming that the trial court was acting erroneously as alleged by the inmate, he did not demonstrate an irreparable injury that would have resulted from the KCPC mental retardation evaluation and which could not have been redressed by appeal from a final determination of the case on the merits; the inmate’s rights under U.S. Const. amend. V were minimally implicated because the inmate had already been convicted and safeguards could have been used, the inmate’s claim that he would have been permanently deprived of his right to a full and fair hearing was vague, speculative, and unpersuasive, and there was no real threat to confidential defense communications. White v. Payne, 332 S.W.3d 45, 2010 Ky. LEXIS 314 ( Ky. 2010 ).

9.Hearing.

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. Thus, petitioner failed to present a known grievance which necessitated a hearing under KRS 31.185 . Partin v. Commonwealth, 337 S.W.3d 639, 2010 Ky. App. LEXIS 249 (Ky. Ct. App. 2010).

It was no error to hold an ex parte hearing to find if a postconviction petitioner were entitled to state funds to hire experts because such a hearing was statutorily available to postconviction petitioners. Commonwealth v. Grise, 558 S.W.3d 923, 2018 Ky. LEXIS 433 ( Ky. 2018 ).

When a postconviction petitioner sought public funds to hire experts, “reasonably necessary” and “impractical use” findings could be made ex parte because (1) reference to “with regard to using private facilities” in Ky. Rev. Stat. Ann. § 31.185(2) showed a legislative intent to make both determinations in one hearing, and (2) a statutory purpose was to place indigent and non-indigent defendants on equal footing, and non-indigent defendants were not required to make such a showing. Commonwealth v. Grise, 558 S.W.3d 923, 2018 Ky. LEXIS 433 ( Ky. 2018 ).

Ex parte hearing applied in the postconviction context because it was nonsensical to allow a criminally accused person access to public funds, subject to the statutory “impractical” requirement but to not afford them a statutory ex parte hearing to make the request. Commonwealth v. Grise, 558 S.W.3d 923, 2018 Ky. LEXIS 433 ( Ky. 2018 ).

Because both the statutory purpose and case law construing the statute in the post-conviction context require it, an ex parte hearing is available to post-conviction petitioners to determine whether such petitioners are entitled to public funds for the procurement of private expert witnesses. Commonwealth v. Grise, 558 S.W.3d 923, 2018 Ky. LEXIS 433 ( Ky. 2018 ).

When a postconviction petitioner seeks public funds for the procurement of expert witnesses, both the “reasonably necessary” determination and the “impractical use” determination are subject to the statutory ex parte hearing requirement. Commonwealth v. Grise, 558 S.W.3d 923, 2018 Ky. LEXIS 433 ( Ky. 2018 ).

10.Mandamus.

Appellant inmate’s request for a writ of mandamus to direct a trial court judge to release expert witness funds pursuant to KRS 31.185 and RCr P. 11.42 was properly denied, as he failed to allege or show that he lacked an adequate remedy by appeal or otherwise. Jones v. Costanzo, 393 S.W.3d 1, 2012 Ky. LEXIS 185 ( Ky. 2012 ).

11.Records.

Ky. Rev. Stat. Ann. § 31.185 does not explicitly authorize ex parte motions or proceedings to obtain court orders for production of records. Moreover, motions pertaining to use of private facilities are not automatically to be made ex parte; they are labelled ex parte only when defense counsel asks to be heard ex parte. Ky. Rev. Stat. Ann. § 31.185 (2). Commonwealth v. Cambron, 546 S.W.3d 556, 2018 Ky. App. LEXIS 73 (Ky. Ct. App. 2018).

Cited:

Boyle County Fiscal Court v. Shewmaker, 666 S.W.2d 759, 1984 Ky. App. LEXIS 479 (Ky. Ct. App. 1984); Lincoln County Fiscal Court v. Department of Pub. Advocacy, 794 S.W.2d 162, 1990 Ky. LEXIS 64 ( Ky. 1990 ); Sommers v. Commonwealth, 843 S.W.2d 879, 1992 Ky. LEXIS 137 ( Ky. 1992 ); Hunter v. Commonwealth, 869 S.W.2d 719, 1994 Ky. LEXIS 14 ( Ky. 1994 ); Foley v. Commonwealth, 55 S.W.3d 809, 2000 Ky. LEXIS 14 5 ( Ky. 2000 ).

Opinions of Attorney General.

Although a county’s commitment to a public advocate program is permissive, when a county does select a public advocate program under KRS 31.160 , the county is committed for that particular fiscal year and must pay any necessary defense expenses other than the defense counsel fees covered in the state’s appropriation under KRS 31.050(2); where a county is currently under a public advocate program, the county must bear the expense of expert witnesses’ fees and psychological examinations used in the defense of indigents charged with felonies and represented by the public advocate. OAG 80-401 .

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).

Notes, McGrath, Sommers v. Commonwealth: An Indigent Criminal Defendant’s Right to Publicly Funded Expert Assistance Other than the Assistance of Counsel, 84 Ky. L.J. 387 (1995-96).

31.190. Appropriation of money by fiscal court and cities. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 353, § 19) was repealed by Acts 2002, ch. 283, § 20. For present law, see KRS 31.050 .

31.200. Expenses chargeable to county and to public advocate. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 353, § 20; 1974, ch. 358, § 12; 1976, ch. 177, § 7; 1978, ch. 155, § 36, effective June 17, 1978; 1994, ch. 395, § 5, effective July 15, 1994; 1998, ch. 491, § 6, effective July 15, 1998) was repealed by Acts 2002, ch. 283, § 20, effective July 15, 2002.

31.210. Annual reports — Records. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 353, § 21; 1976, ch. 177, § 8; 1978, ch. 155, § 37, effective June 17, 1978) was repealed by Acts 2002, ch. 283, § 20, effective July 15, 2002. For present law see KRS 31.050 .

31.211. Determination of ability to pay partial fee for representation and services at arraignment — Collection of unpaid partial fee by civil judgment — Partial fee credited to local office or department — Funds placed in special trust and agency account.

  1. At arraignment, the court shall conduct a nonadversarial hearing to determine whether a person who has requested a public defender is able to pay a partial fee for legal representation, the other necessary services and facilities of representation, and court costs. The court shall order payment in an amount determined by the court and may order that the payment be made in a lump sum or by installment payments to recover money for representation provided under this chapter. This partial fee determination shall be made at each stage of the proceedings.
  2. If the partial fee, or any portion thereof, is not paid by the due date, the court’s order is a civil judgment subject to collection under Civil Rule 69.03 and KRS Chapter 426.
  3. All moneys received by the public advocate from indigent defendants pursuant to subsection (1) of this section shall be credited to the public advocate fund of the county in which the trial is held if the county has a plan pursuant to KRS 31.060 or 31.065(1) which has been approved by the public advocate pursuant to KRS 31.050 . Moneys credited to a county public advocate fund may be used only to support the public advocate program of that county.
  4. All moneys collected by the public advocate from indigent defendants pursuant to subsection (1) of this section in counties with a local public advocacy system established by the public advocate pursuant to KRS 31.065(2) shall be credited to the Department of Public Advocacy special trust and agency account to be used to support the state public advocacy system.
  5. If a person receives legal assistance or other benefit under this chapter to which he or she is not entitled or if a person receives legal assistance under this chapter and is financially able to pay for representation on the date the suit is brought, the public advocate, on behalf of the Commonwealth, shall recover, where practical, payment or reimbursement, as the case may be, from the person who received the legal assistance or his or her estate. Suit shall be brought within five (5) years after the date on which the aid was received.
  6. Any attorney participating in a public advocacy plan shall forward all information which he or she may have which indicates that payment or reimbursement may be obtained pursuant to subsection (5) of this section.
  7. The duty of recovery contemplated by subsection (5) of this section shall extend against persons who were the custodial parents or guardians of unemancipated minors at the time these minors were deemed needy as defined in KRS 31.100(5)(c) or (d).
  8. All moneys collected under this section shall be placed in a special trust and agency account for the Department of Public Advocacy, and the funds shall not lapse.

History. Enact. Acts 2002, ch. 283, § 14, effective July 15, 2002; 2014, ch. 87, § 8, effective July 15, 2014.

NOTES TO DECISIONS

1.Payment of Representation Costs from Forfeited Funds.

When, after defendant was convicted of first degree trafficking in a controlled substance, money seized from him at the time of his arrest was ordered forfeited, that money could not be applied to the costs of his representation by appointed counsel because, under KRS 218A.410(2), title to the forfeited property vested in the Commonwealth of Kentucky as of the commission of the act giving rise to the forfeiture; so, when defendant was being represented at Commonwealth’s expense, the forfeited funds were not his, causing him to lack the ability to contribute to the costs of his defense, so that there was no statutory authority, under KRS 31.211(1) or (5), to order reimbursement of the costs of his representation from the forfeited funds. Commonwealth v. Dep't of Public Advocacy, 2004 Ky. App. LEXIS 159 (Ky. Ct. App. May 28, 2004, sub. op., 2004 Ky. App. Unpub. LEXIS 928 (Ky. Ct. App. May 28, 2004).

2.Hearing.

When defendant entered a conditional guilty plea to first-degree rape and kidnapping, defendant did not waive the right to appeal whether the trial court failed to hold a “nonadversarial hearing” as to costs and fees as required by KRS 31.211(1). McEntire v. Commonwealth, 344 S.W.3d 125, 2010 Ky. App. LEXIS 211 (Ky. Ct. App. 2010).

Circuit court erred in imposing attorney fees on a parent for the parent’s failure to comply with a child support order because the court did not conduct a non-adversarial hearing to determine whether the parent had the ability to pay for the parent’s legal representation. The parent was previously found to be indigent by the circuit court and subsequently granted in forma pauperis status on appeal, but there was never any finding of good cause determining the parent was no longer to be considered indigent. Crandell v. Commonwealth, 2021 Ky. App. Unpub. LEXIS 121 (Ky. Ct. App. Feb. 26, 2021), rev'd in part, aff'd, 2022 Ky. LEXIS 82 (Ky. Mar. 24, 2022).

3.Court Costs Properly Assessed.

Under KRS 23A.205 and 31.211 court costs were assessable against a criminal defendant who had needed appointed counsel; paying $ 130 over a six-month period amounted to less than one dollar a day, and defendant presented no evidence that he had any physical or mental disabilities preventing him from employment. Maynes v. Commonwealth, 2010 Ky. App. LEXIS 169 (Ky. Ct. App. Sept. 24, 2010), aff'd, 361 S.W.3d 922, 2012 Ky. LEXIS 20 ( Ky. 2012 ).

Statute allowing for costs to be assessed after sentencing, KRS 23A.205 , allowed for court costs to be waived for “poor persons,” as defined in KRS 453.190(2), but did not give defendant the blanket immunity from costs that defendant suggested was required by KRS 31.110 . Rather, the trial court could consider under KRS 23A.205 both a defendant’s ability to pay at present and in the foreseeable future, whereas statutes such as KRS 31.100 regarding “needy persons” focused on a defendant’s inability to provide payment for representation by an attorney at all and KRS 31.211 provided solely for a “present tense” determination, which did not apply to defendant because defendant had been released from custody and could work to pay for the modest court costs assessed against defendant. Maynes v. Commonwealth, 361 S.W.3d 922, 2012 Ky. LEXIS 20 ( Ky. 2012 ).

4.Court Costs Improperly Assessed.

Decision to impose or waive court costs was to be made by the trial court by or at the time of sentencing; there was no statutory basis for a court to exercise jurisdiction to determine the appropriateness of court costs beyond the end of the proceedings, much less once the sentence has been imposed and served and the defendant has been released from prison. Buster v. Commonwealth, 381 S.W.3d 294, 2012 Ky. LEXIS 162 ( Ky. 2012 ).

Because defendant was found to be a “poor person” under KRS 453.190(2), a trial court erred in imposing costs under KRS 23A.205 and assessing a partial public defender fee under KRS 31.211(1). Miller v. Commonwealth, 391 S.W.3d 857, 2013 Ky. LEXIS 10 ( Ky. 2013 ).

Trial court erred in assessing a public defender fee as it did not conduct a nonadversarial hearing to determine whether defendant had the present ability to pay for his legal representation. Applegate v. Commonwealth, 577 S.W.3d 83, 2018 Ky. App. LEXIS 239 (Ky. Ct. App. 2018).

5.Partial Payment Requirement Improper.

Trial court's imposition of a $450.00 attorney fee on defendant was improper where he was represented by a public defender at the time of sentencing and was granted in forma pauperis status on appeal, and thus, it was clear his indigency continued throughout trial. Spicer v. Commonwealth, 442 S.W.3d 26, 2014 Ky. LEXIS 435 ( Ky. 2014 ).

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).

31.215. Acceptance of fees by public advocacy attorneys prohibited — Exceptions.

  1. Except for attorneys appointed pursuant to KRS 620.100 , 625.041 , 625.080 , and 31.120 , no attorney participating in a public advocacy plan shall accept any fees for the representation of any needy person as defined in this chapter from that person or anyone for his benefit and the fees for representation of that person shall be limited to the fees provided in this chapter. “Fees” shall include cash, property, or other pecuniary benefits of any kind.
  2. Any attorney participating in a public advocacy plan who receives or attempts to collect a fee from a needy person as prohibited by subsection (1) above shall be guilty of a Class D felony.

History. Repealed and reenact., Acts 2002, ch. 283, § 15, effective July 15, 2002.

Compiler’s Notes.

This section was formerly compiled as KRS 31.250 .

NOTES TO DECISIONS

1.Subsequent Private Representation.

The legislature intended to prohibit any part-time public defender (now public advocate) from accepting a fee from a client he was appointed to represent and that subsequent withdrawal or discharge from the appointment does not thereafter entitle the attorney to accept a fee for private representation. Kentucky Bar Asso. v. An Unnamed Attorney, 769 S.W.2d 45, 1989 Ky. LEXIS 30 ( Ky. 1989 ).

2.Inapplicability.

Attorney was not participating in any form of public advocacy plan even though he was a private attorney who was approached by the Department of Public Advocacy for a possible criminal defense appointment; therefore, the record did not indicate that attorney could accept a fee for his representation of defendant. Hubble v. Johnson, 841 S.W.2d 169, 1992 Ky. LEXIS 196 ( Ky. 1992 ).

Cited:

Kentucky Bar Asso. v. Dungan, 586 S.W.2d 15, 1979 Ky. LEXIS 276 ( Ky. 1979 ), cert. denied, 444 U.S. 1033, 100 S. Ct. 704, 62 L. Ed. 2d 669, 1980 U.S. LEXIS 464 (1980).

Opinions of Attorney General.

The word “public,” as used in this section, is broad enough to embrace any source that has the authority to turn over its fund to the public defender (now public advocate), including the General Assembly through its general fund. OAG 73-753 .

Research References and Practice Aids

Kentucky Bench & Bar.

Farley, The Public Defender System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 18.

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).

31.219. Appeal by public advocacy attorney.

  1. It shall be the duty of the attorney representing a client at trial under any public advocacy plan to file a notice of appeal if his or her client requests an appeal.
  2. After the attorney has filed a notice of appeal as required by the Rules of Criminal Procedure, he or she shall forward to the Department of Public Advocacy a copy of the final judgment, the notice of appeal, a statement of any errors committed in the trial of the case which should be raised on appeal, and a designation of that part of the record that is essential to the appeal.
  3. Any public advocacy attorney who is representing a client on appeal who after a conscientious examination of said appeal believes the appeal to be wholly frivolous after careful examinations of the record may request the court to which the appeal has been taken for permission to withdraw from the case. The attorney must file with that request a brief which sets forth any arguments which might possibly be raised on appeal. A copy of the request for permission to withdraw and the brief must be served upon the client in sufficient time so that the client may raise any argument he or she chooses to raise.

History. Enact. Acts 1976 (Ex. Sess.), ch. 24, § 1; 1978, ch. 155, § 28, effective June 17, 1978; repealed and reenact., Acts 2002, ch. 283, § 16, effective July 15, 2002; 2014, ch. 87, § 6, effective July 15, 2014.

Compiler’s Notes.

This section was formerly compiled as KRS 31.115 .

Research References and Practice Aids

Kentucky Bench & Bar.

Farley, The Public Defender System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 18.

Kentucky Law Journal.

Comments, The Contemporaneous Objection Rule: Time for a Re-Examination, 67 Ky. L.J. 212 (1978-1979).

Kentucky Law Survey, Collier, Criminal Procedure, 68 Ky. L.J. 655 (1979-1980).

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

31.220. When chapter applies to United States courts.

This chapter applies only to representation in the courts of this state, except that it does not prohibit a defending attorney from representing a needy person in a federal court of the United States, if:

  1. The matter involves a challenge to the validity, timing, or method of implementation of a judgment of a Kentucky state court in a criminal case;
  2. The matter relates to the fact, duration, or conditions of confinement for a juvenile offender represented under KRS 31.100(5); or
  3. Representation is under a plan of the United States District Court as required by the Criminal Justice Act of 1964.

History. Enact. Acts 1972, ch. 353, § 22; 1976, ch. 177, § 9; 2002, ch. 283, § 17, effective July 15, 2002; 2014, ch. 87, § 7, effective July 15, 2014.

NOTES TO DECISIONS

Cited:

In re Parker, 49 F.3d 204, 1995 U.S. App. LEXIS 4356 (6th Cir. 1995).

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).

31.230. Protections — Sanctions. [Repealed and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 353, § 23) was repealed and reenacted as KRS 31.241 by Acts 2002, ch. 283, § 19, effective July 15, 2002.

31.235. Payment for representation upon failure of department to provide attorney — Decision of public advocate final.

If a court, after finding that the Department of Public Advocacy fails to provide an attorney to a person eligible for representation under KRS Chapter 31, appoints, under the court’s inherent authority, an attorney to provide representation to the needy person, the public advocate is hereby authorized to pay reasonable and necessary fees and expenses subject to the following limitations:

  1. No fee shall be paid in excess of the prevailing maximum fee per attorney paid by the Department of Public Advocacy for the type of representation provided, and no hourly rate shall be paid in excess of the prevailing hourly rate paid by the Department of Public Advocacy for the type of representation provided; and
  2. Each fee plus expenses incurred in the defense shall be presented by the defense attorney to the Circuit Judge who shall review the fee and expenses request and shall approve, deny, or modify the amount of compensation and fee listed therein. After final approval of the fee and expenses the Circuit Judge shall, if state compensation is desired, certify the amount and transmit the document to the public advocate who shall review the fee and expense request and shall approve, deny, or modify the request. The request as approved or modified shall then be paid. Requests for payment of assigned counsel by the state shall be denied if the district has exceeded the amount of funds which may be allotted to it, if the district plan has not been approved, or if the public advocate finds that compensation is otherwise not warranted. The decision of the public advocate in all matters of fee and expense compensation shall be final.

History. Repealed and reenact., Acts 2002, ch. 283, § 18, effective July 15, 2002.

Compiler’s Notes.

This section was formerly compiled as KRS 31.070 .

NOTES TO DECISIONS

1.Appointment of Volunteer Pro Bono Attorney.

Neither KRS Chapter 31 nor the United States or Kentucky Constitution, prohibit a Circuit Judge from appointing a volunteer pro bono member of the bar to represent a defendant in a capital case. Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479, 1993 U.S. LEXIS 2856 (U.S. 1993), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

2.Authority to Set Excess Fees.

Where the court appointed attorneys to represent indigent defendant and attempted to set those attorneys’ fees under this section in a county with a local plan of indigent representation pursuant to KRS 31.240 , the trial judge did not have the authority to direct the State Department for Public Advocacy to pay fees in excess of the fee parameters provided by this section. Pillersdorf v. Department of Pub. Advocacy, 890 S.W.2d 616, 1994 Ky. LEXIS 125 ( Ky. 1994 ).

Cited:

Hunter v. Commonwealth, 869 S.W.2d 719, 1994 Ky. LEXIS 14 ( Ky. 1994 ).

Opinions of Attorney General.

Counties may adopt a plan whereby counsel to represent a child in a juvenile court hearing under KRS 208.060 (now repealed) is appointed by the judge and paid by the office of the public defender (now public advocate) pursuant to this section. OAG 73-718 .

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Attorneys’ Fees Recoverable in Kentucky Litigation, Vol. 44, No. 4, October, 1980, Ky. Bench & Bar 28.

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).

Northern Kentucky Law Review.

Blakley, The Cost of Killing Criminals, 18 N. Ky. L. Rev. 61 (1990).

31.240. Compensation by counties of public advocates — State contributions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 353, § 24; 1978, ch. 155, § 38, effective June 17, 1978; 1984, ch. 111, § 171, effective July 13, 1984; 1998, ch. 491, § 7, effective July 15, 1998) was repealed by Acts 2002, ch. 283, § 20, effective July 15, 2002. For present law, see KRS 31.050 .

31.241. Protections — Sanctions.

The protections provided by this chapter do not exclude any protection or sanction that the law otherwise provides.

History. Repealed and reenact., Acts 2002, ch. 283, § 19, effective July 15, 2002.

Compiler’s Notes.

This section was formerly compiled as KRS 31.230 .

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).

31.250. Acceptance of fees by public advocacy attorneys prohibited — Exceptions. [Repealed and reenacted.]

Compiler’s Notes.

This section (Enact. Acts 1976 (Ex. Sess.), ch. 24, § 2; 1978, ch. 155, § 39, effective June 17, 1978; 1992, ch. 241, § 3, effective July 14, 1992) was repealed and reenacted as KRS 31.215 by Acts 2002, ch. 283, § 15.

CHAPTER 31A Master Commissioners and Receivers

31A.010. Master commissioners.

  1. A master commissioner may be appointed for each county within a judicial circuit.
    1. In single-judge circuits the appointment shall be made by the Circuit Judge.
    2. In judicial circuits with more than one (1) judge the master commissioner shall be chosen by a majority of the judges and in the event of a tie the Chief Circuit Judge shall choose from those receiving the tie vote.
  2. The master commissioner shall be governed by such rules not inconsistent with the statutes of the Commonwealth as may be set by the Supreme Court.
  3. The master commissioner shall serve at the pleasure of the court as follows:
    1. In a single-judge circuit the master commissioner shall serve at the pleasure of the Circuit Judge, but in no case shall his term exceed four (4) years without reappointment. The term of the commissioner shall automatically terminate following the death, resignation, or permanent replacement of the Circuit Judge who appointed him.
    2. In a judicial circuit with more than one (1) judge the master commissioner shall serve at the pleasure of the judges of the circuit, but in no case shall his term exceed four (4) years without reappointment. The master commissioner may be removed at any time by a majority vote of the judges of the circuit and in the event of a tie the decision shall be made by the Chief Circuit Judge.
  4. Each commissioner shall annually provide to the Administrative Office of the Courts a complete accounting for all amounts received and distributed and for all fees collected. The master commissioner shall be compensated by fees as provided by rule of the Supreme Court. Fees collected in excess of the authorized compensation and expenses of the master commissioner shall be remitted with the report to the Administrative Office of the Courts to inure to a trust and agency account which shall not lapse and which shall be used to hire additional deputy clerks or office personnel, to increase deputy clerk or office personnel salaries, or a combination thereof. The Circuit Court may allow the commissioner a reasonable fee for performing judicial type functions in actions where the master commissioner does not execute a judicial sale.
  5. The master commissioner shall maintain his office at such locations and during such hours as authorized by rule of the Supreme Court.
  6. The master commissioner shall perform such functions, including those of a receiver, as may be directed by an appropriate order of court.
  7. The master commissioner may have such deputies and assistants, as authorized by rule of the Supreme Court, as are necessary to perform the functions of his office.
  8. The Supreme Court may make such rules, regulations, and accounting procedures as it may deem necessary for the appointment, conduct, and other matters relating to the master commissioner or receiver.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 48, effective January 2, 1978; 1982, ch. 222, § 1, effective July 15, 1982; 2005, ch. 173, Pt. XIII, 1.(2), § 1, effective March 20, 2005.

NOTES TO DECISIONS

1.Nature of Office.

The master commissioner is analogous to the English permanent master in chancery. (Decided under prior law)Ison v. Commonwealth, 110 Ky. 112 , 60 S.W. 1125, 22 Ky. L. Rptr. 1588 , 1901 Ky. LEXIS 61 ( Ky. 1901 ).

A master commissioner is merely an assistant of the chancellor, and is a part of the court; his official acts are subject to the court’s control. (Decided under prior law)Shannon v. Ray, 280 Ky. 31 , 132 S.W.2d 545, 1939 Ky. LEXIS 70 ( Ky. 1939 ).

While master commissioner is a public officer he is not a state officer nor county officer, and neither the attorney general nor the county attorney is required to represent him. (Decided under prior law)Shannon v. Ray, 280 Ky. 31 , 132 S.W.2d 545, 1939 Ky. LEXIS 70 ( Ky. 1939 ).

2.Term.

The fact that the term for which the master commissioner was appointed had expired and no reappointment had been made would not invalidate a sale made by him, since he would hold office until qualification of a successor. (Decided under prior law)Combs v. Salyer, 291 Ky. 592 , 165 S.W.2d 40, 1942 Ky. LEXIS 273 ( Ky. 1942 ).

3.Duties.

A master commissioner has the duty to safeguard and preserve funds belonging to his office, and must employ counsel to defend litigation, the expense of which is a necessary expense of his office. (Decided under prior law)Shannon v. Ray, 280 Ky. 31 , 132 S.W.2d 545, 1939 Ky. LEXIS 70 ( Ky. 1939 ).

4.— Judicial Sale.

Master Commissioners can set the date for a judicial sale of property where the court’s order is silent in that regard. Kissell Co. v. Chadwick, 737 S.W.2d 710, 1987 Ky. App. LEXIS 576 (Ky. Ct. App. 1987).

Master commissioner was entitled to quasi-judicial immunity because it was determined that there was no judicial discretion in act of ordering the sale of a property that was subject to a judgment; it was a purely ministerial act. The act of enforcing a court order was intrinsically associated with a judicial proceeding. J.P. Silverton Indus. L.P. v. Sohm, 243 Fed. Appx. 82, 2007 FED App. 0451N, 2007 U.S. App. LEXIS 15621 (6th Cir. Ky. 2007 ).

The master commissioner, when ordered by a judgment to sell property, must be personally present at the sale, although he may employ an auctioneer. (Decided under prior law)Back v. Bank of Jamestown, 239 Ky. 655 , 40 S.W.2d 270, 1931 Ky. LEXIS 830 ( Ky. 1931 ).

Sale by auctioneer in absence of master commissioner may be set aside. (Decided under prior law)Back v. Bank of Jamestown, 239 Ky. 655 , 40 S.W.2d 270, 1931 Ky. LEXIS 830 ( Ky. 1931 ).

Master Commissioners can set the date for a judicial sale of property where the court’s order is silent in that regard. (Decided under prior law)Kissell Co. v. Chadwick, 737 S.W.2d 710, 1987 Ky. App. LEXIS 576 (Ky. Ct. App. 1987).

5.Personal Gain.

A commissioner may not derive personal gain by purchasing a claim from a creditor of the estate he is handling. (Decided under prior law)Titherington's Adm'r v. Hodge, 81 Ky. 286 , 5 Ky. L. Rptr. 211 , 1883 Ky. LEXIS 60 ( Ky. 1883 ).

A sale by the master commissioner, acting in his official capacity, to himself, is void. (Decided under prior law)Price's Adm'r v. Thompson, 84 Ky. 219 , 1 S.W. 408, 8 Ky. L. Rptr. 201 , 1886 Ky. LEXIS 58 (Ky. Ct. App. 1886).

6.Sale Bond.

The master commissioner may, without a court order directing him to do so, collect bonds for the purchase money of land sold under judgment and payable to him. (Decided under prior law)Ison v. Commonwealth, 110 Ky. 112 , 60 S.W. 1125, 22 Ky. L. Rptr. 1588 , 1901 Ky. LEXIS 61 ( Ky. 1901 ).

A master commissioner who required the execution of sale bonds, when he sold property in accordance with a judgment, must have obtained solvent sureties on such bonds. (Decided under prior law)Commonwealth use of Whitley Nat'l Bank v. Lewis, 181 Ky. 804 , 205 S.W. 921, 1918 Ky. LEXIS 613 ( Ky. 1918 ).

7.— Liability.

One who sues a master commissioner for not requiring a surety to be solvent need not prove that the commissioner was guilty of negligence or fraud. (Decided under prior law)Commonwealth use of Whitley Nat'l Bank v. Lewis, 181 Ky. 804 , 205 S.W. 921, 1918 Ky. LEXIS 613 ( Ky. 1918 ).

If master commissioner failed to obtain an affidavit from the surety as required by statute he was liable for the solvency of the sureties though he may have carefully looked into their solvency, but he was not liable if the sureties actually did have the property specified in the statutes; however even if the commissioner required an affidavit, his liability remained if he knew that the surety was in fact insolvent, or that the affidavit was false in some particular. (Decided under prior law)Commonwealth use of Whitley Nat'l Bank v. Lewis, 181 Ky. 804 , 205 S.W. 921, 1918 Ky. LEXIS 613 ( Ky. 1918 ).

8.— Suit On.

The limitation period within which the commissioner must sue on the sale bond is 15 years. (Decided under prior law)French v. Bowling, 85 S.W. 1182, 27 Ky. L. Rptr. 639 (1905).

When a commissioner has sold land and taken a sale bond payable to him in his official capacity, his successor in office may sue on the bond, without making a creditor of the owner a party. (Decided under prior law)French v. Bowling, 85 S.W. 1182, 27 Ky. L. Rptr. 639 (1905).

9.Signature of Deputy on Documents, Effect.

Fact that report of sale is signed by a deputy commissioner instead of master commissioner is not ground for setting aside sale. (Decided under prior law)Bean v. Meguiar, 47 S.W. 771, 20 Ky. L. Rptr. 885 (1898).

Cited:

Sterling Grace Mun. Secs. Corp. v. Central Bank & Trust Co., 926 S.W.2d 670, 1995 Ky. App. LEXIS 201 (Ky. Ct. App. 1995).

Opinions of Attorney General.

The nature of the language of the compensation limitation in former subsection (4) of this section and the fact that master commissioners traditionally have performed judicial-type functions only in actions which involved execution of a judicial sale indicate that the $7,200 limitation applies only to compensation derived from fees arising from actions in which the master commissioner executes a judicial sale, and a master commissioner’s compensation for performing judicial-type functions in actions other than one in which he executes a judicial sale may exceed $7,200 annually. OAG 78-751 .

A person who is the master commissioner of the county Circuit Court can lawfully be appointed to serve as a member of the water commission, since the office of master commissioner is, under this section, merely a position filled by and under the jurisdiction of the Circuit Court, rather than a state, county or city office; thus, no incompatibility exists under KRS 61.080 and Ky. Const., § 165, between the two positions. OAG 81-313 .

Under CR 53.08 the maximum compensation payable to master commissioners is $24,000 per annum; the $7,200 annual limit imposed by former subsection (4) of this section applies only to compensation derived from fees arising from judicial sales executed by the commissioner. OAG 82-24 .

After 90 days from the close of the 1982 session, the 1982 amendment to KRS 31A.010 will have the effect of providing that the master commission shall be compensated by fees as provided by rule of the Supreme Court; the rules referred to are CR 53.07 through CR 53.09 and, thus, at that point all of the master commissioners in Kentucky will be subject to a compensation derived from fees and not exceeding $24,000 per year. OAG 82-206 .

In enacting the 1982 amendment to this section, the legislature has eliminated the special restrictions on master commissioners’ compensation formerly found in subsection (4) of this section in favor of a general law applicable to all master commissioners within the Commonwealth of Kentucky. OAG 82-206 .

“Publication pursuant to KRS Chapter 424,” as provided by 426.560 , means (1) publication in a particular “publication area” and (2) publication in a qualified newspaper. OAG 94-9 .

The Master Commissioner of McCreary County, a quasi-judicial officer who serves at the pleasure of the judge or judges of the Circuit Court pursuant to KRS 31A.010(3) and CR 53.01, is not bound by the provisions of the Open Records Act, KRS 61.870 et seq., and therefore did not violate the Act in failing to respond to requests for financial records of the Commissioner’s office. OAG 02-ORD-235.

Research References and Practice Aids

Cross-References.

Administrator, commissioner not to be accepted as, KRS 395.040 .

Bonds, KRS 62.050 .

City recreational projects, receiver to administer, KRS 97.190 .

Conveyances to be made by commissioner, KRS 426.570 to 426.575 .

Division of land and allotment of dower, KRS 381.135 .

Oath, KRS 62.010 .

Statutory liens, duties of commissioner in actions to enforce, KRS 376.120 , 376.130 .

Sureties, release and indemnity, proceeding for, KRS 62.090 .

Surety for personal representative, commissioner not accepted as, KRS 395.140 .

Waste, prevention of, receiver appointed for, KRS 381.420 .

2008-2010 Budget Reference.

See Judicial Branch Budget, 2008 Ky. Acts ch. 128, Pt. III, 11, at 616; and Judicial Branch Budget Memorandum, 2008 Ky. Acts ch. 190, at 1985 (Final Budget Memorandum, at X-28).

Kentucky Law Journal.

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Receivership, § 157.00.

Petrilli, Kentucky Family Law, Court Procedure, § 23.35.

31A.020. Bond — Special bond.

The master commissioner shall execute a bond, with surety approved by the court. The bond shall be recorded in court. He shall execute a special bond when required by the court and no action shall be maintained on his general bond for matters covered by a special bond.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 49, effective January 2, 1978.

NOTES TO DECISIONS

1.Bond.

The book in which the master commissioner keeps his accounts is competent evidence against sureties on his bond. (Decided under prior law) Head's Adm'x v. Commonwealth, 254 Ky. 687 , 72 S.W.2d 60, 1934 Ky. LEXIS 138 ( Ky. 1934 ).

The limitation period for a suit against the commissioner on his bond begins to run from the time he fails to pay out money as required by the court. (Decided under prior law) Head's Adm'x v. Commonwealth, 254 Ky. 687 , 72 S.W.2d 60, 1934 Ky. LEXIS 138 ( Ky. 1934 ).

2.— Liability of Surety.

The sureties on the bond of a master commissioner are held only for the term for which the bond was given. (Decided under prior law) Catlin v. United States Fidelity & Guaranty Co., 137 Ky. 208 , 125 S.W. 297, 1910 Ky. LEXIS 559 ( Ky. 1910 ); United States Fidelity & Guaranty Co. v. Faulkner, 144 Ky. 629 , 139 S.W. 853, 1911 Ky. LEXIS 701 ( Ky. 1911 ); Head's Adm'x v. Commonwealth, 254 Ky. 687 , 72 S.W.2d 60, 1934 Ky. LEXIS 138 ( Ky. 1934 ). But see Ison v. Commonwealth, 110 Ky. 112 , 60 S.W. 1125, 22 Ky. L. Rptr. 1588 , 1901 Ky. LEXIS 61 ( Ky. 1901 ).

The surety is liable for money collected by the commissioner by color of his office but not by virtue of it. (Decided under prior law) Catlin v. United States Fidelity & Guaranty Co., 137 Ky. 208 , 125 S.W. 297, 1910 Ky. LEXIS 559 ( Ky. 1910 ); Head's Adm'x v. Commonwealth, 254 Ky. 687 , 72 S.W.2d 60, 1934 Ky. LEXIS 138 ( Ky. 1934 ).

Sureties are not liable for costs in actions independent of the one establishing their liability for the master commissioner’s wrongful acts. (Decided under prior law) United States Fidelity & Guaranty Co. v. Faulkner, 144 Ky. 629 , 139 S.W. 853, 1911 Ky. LEXIS 701 ( Ky. 1911 ).

When sued for defalcations of the master commissioner the sureties must prove that the funds stated by reports of the commissioner to be in his possession were not there when they signed the bond. (Decided under prior law) Head's Adm'x v. Commonwealth, 254 Ky. 687 , 72 S.W.2d 60, 1934 Ky. LEXIS 138 ( Ky. 1934 ).

3.— Indemnity.

A commissioner ordered by the court to lend out money and pay the interest to certain persons is under a continuous duty, and when he ceases doing this he violates his bond. (Decided under prior law) Head's Adm'x v. Commonwealth, 254 Ky. 687 , 72 S.W.2d 60, 1934 Ky. LEXIS 138 ( Ky. 1934 ).

The general term in Jefferson County must pass on what are the expenses of the master commissioner’s office in order to determine the amount of the shortage of receipts. (Decided under prior law) Shannon v. Ray, 280 Ky. 31 , 132 S.W.2d 545, 1939 Ky. LEXIS 70 ( Ky. 1939 ).

Research References and Practice Aids

NOTES TO DECISIONS

ALR

Liability of clerk of court, county clerk or prothonotary, or surety on bond, for negligent or wrongful act of deputies or assistants. 71 A.L.R.2d 1140.

31A.030. Oath.

The master commissioner shall take an oath that he will faithfully and honestly discharge the duties of his office.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 50, effective January 2, 1978.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Oath to Receivers (Master Commissioner), Form 11.09.

31A.040. Special commissioner.

  1. When the master commissioner is interested as an attorney or party; or
  2. When there is other conflict of interest; or
  3. When he is otherwise unable to discharge the duties of his office for any reason;

the judge of the court before whom the action is pending shall appoint a special commissioner, who shall meet the same qualifications as a master commissioner, and require him to take an oath and execute a bond as the regular commissioner is required to do.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 51, effective January 2, 1978.

NOTES TO DECISIONS

1.Disqualification of Master Commissioner.

Where the master commissioner is a party, he should not make a sale in the case, but the sale should be referred to a special master commissioner. (Decided under prior law)Nolan's Ex'rs v. Nolan, 220 Ky. 613 , 295 S.W. 893, 1927 Ky. LEXIS 580 ( Ky. 1927 ).

Exception to order appointing special commissioner was well taken, where it was not shown that the master commissioner was disqualified. (Decided under prior law)Turner v. Ewald, 295 Ky. 764 , 174 S.W.2d 431, 1943 Ky. LEXIS 233 ( Ky. 1943 ).

2.Bond.

One who has signed the bond of a special commissioner may not deny the authority of the chancellor to appoint him. (Decided under prior law)Caperton's Ex'r v. State Bank & Trust Co., 146 Ky. 415 , 142 S.W. 1021, 1912 Ky. LEXIS 94 ( Ky. 1912 ).

Cited:

Sterling Grace Mun. Secs. Corp. v. Central Bank & Trust Co., 926 S.W.2d 670, 1995 Ky. App. LEXIS 201 (Ky. Ct. App. 1995).

Research References and Practice Aids

Cross-References.

Statutory liens, special commissioner in actions to enforce, KRS 376.110 .

31A.080. Receivers — Persons not to be appointed receivers.

  1. Receivers, except as provided in subsection (2) of this section, may be appointed under the same terms and conditions as a master commissioner.
  2. Except for personal representatives, guardians, curators and committees for persons of unsound mind, neither a party to an action, nor his attorney, nor any person interested therein, shall be appointed as a receiver unless by agreement of the parties.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 52, effective January 2, 1978.

NOTES TO DECISIONS

1.Appointment of Receiver.
2.— Generally.

The appointment of a receiver is a matter always within the sound discretion of the court. (Decided under prior law) Woodward v. Woodward, 31 S.W. 734, 17 Ky. L. Rptr. 464 (1895); Louisville & N. R. Co. v. Eakin, 100 Ky. 745 , 39 S.W. 416 ( Ky. 1897 ); Hurst v. Nicola Bros. Co., 65 S.W. 364, 23 Ky. L. Rptr. 1406 , 1901 Ky. LEXIS 414 (Ky. Ct. App. 1901).

The appointment of a receiver is in the nature of a provisional remedy, but is the last of that sort of remedies to be resorted to, and in the exercise of its legal discretion, in granting or denying a motion for a receiver, the court must be guided largely by the facts of the particular case, and keep in mind that the discretion must be exercised only as an auxiliary to attain the ends of justice more completely, when no other remedy will accomplish that end so satisfactorily. (Decided under prior law) Elkhorn Hazard Coal Co. v. Fairchild, 191 Ky. 276 , 230 S.W. 61, 1921 Ky. LEXIS 312 ( Ky. 1921 ).

The terms of former law that provided for appointment of a receiver did not imperatively require the appointment of a receiver for the property of a debtor at the demand of a creditor who has a lien upon the property; such appointment is always within the sound discretion of the court to be exercised, however, in accordance with established legal principles. (Decided under prior law) Elkhorn Hazard Coal Co. v. Fairchild, 191 Ky. 276 , 230 S.W. 61, 1921 Ky. LEXIS 312 ( Ky. 1921 ).

The court has jurisdiction to appoint receiver for property which is the subject of the action after execution of supersedeas and perfection of appeal as this is a collateral matter not concluded by the judgment. (Decided under prior law) Perkins v. National Bond & Inv. Co., 224 Ky. 65 , 5 S.W.2d 475, 1928 Ky. LEXIS 528 ( Ky. 1928 ).

The one seeking the appointment of a receiver must show that the property is in danger of being lost, or of being removed or materially injured. (Decided under prior law) Evans' Adm'r v. Clinton Bank, 244 Ky. 270 , 50 S.W.2d 563, 1932 Ky. LEXIS 411 ( Ky. 1932 ).

It is a rule of general application that a receiver should be a person wholly impartial and indifferent toward all parties interested in the fund to be administered. (Decided under prior law) Young v. Fidelity & Columbia Trust Co., 258 Ky. 263 , 79 S.W.2d 944, 1935 Ky. LEXIS 141 ( Ky. 1935 ).

A receiver will not be appointed unless it appears that the appointment is necessary either to prevent fraud or to save the property from injury or threatened loss or destruction. (Decided under prior law) Reid Drug Co. v. Salyer, 268 Ky. 522 , 105 S.W.2d 625, 1937 Ky. LEXIS 503 ( Ky. 1937 ).

3.— Circumstances Authorizing Appointment.

In order to entitle a vendor of realty to an order appointing a receiver for the property upon which he holds a lien it should not only be shown that the party in possession is insolvent and the property insufficient to pay the debt, but also that the party in possession is committing or threatening to commit waste or by bad husbandry impairing the value of the vendor’s security; while in the case of a mortgage, if it appears that the mortgaged property is merely insufficient to discharge the indebtedness and the party in possession is insolvent, a court of equity will appoint a receiver to secure the rents, profits and earnings accruing after the date of appointment in order to make good the deficiency in the sale of the property. (Decided under prior law) Columbia Finance & Trust Co. v. Morgan, 44 S.W. 389, 19 Ky. L. Rptr. 1761 (Ky.), modified, 44 S.W. 628, 19 Ky. L. Rptr. 1765 ( Ky. 1898 ).

Lien asserted against three-eighths interest of the land justified court in appointing receiver to take charge of timber on the land and prevent the owners of five-eighths interest from removing timbers except for fences and necessary repairs. (Decided under prior law) Dupoyster v. Ft. Jefferson Imp. Co., 72 S.W. 268, 24 Ky. L. Rptr. 1782 (1903).

Where plaintiff had a mortgage securing 18 notes for $100 each with interest, one of which matured each year, and the mortgage conveyed not only the property, but all of the rents, issues and profits thereof, and the mortgagor had made default on several of the notes, plaintiff was entitled to appointment of a receiver of the rents and profits regardless of the fact that the value of the mortgaged property might be more than sufficient to pay the mortgage debt. (Decided under prior law) Handman v. Volk, 99 S.W. 660, 30 Ky. L. Rptr. 818 , 1907 Ky. LEXIS 392 (Ky. Ct. App. 1907).

The appointment of a receiver is an extraordinary remedy, and to obtain this extraordinary remedy it must be shown that the defendant is insolvent or that some other reason exists rendering the other remedies referred to inadequate. McClure v. McGee, 128 Ky. 464 , 108 S.W. 341, 32 Ky. L. Rptr. 1318 , 1908 Ky. LEXIS 67 ( Ky. 1908 ).

Where purchaser had paid a part of the purchase price he had a lien as between the parties upon the property purchased and where the property was in danger of being lost or materially injured a receiver could be appointed for the purpose of preserving it until the rights of the respective parties could be ascertained. (Decided under prior law) Summers Fiber Co. v. Walker, 109 S.W. 883, 33 Ky. L. Rptr. 153 , 1908 Ky. LEXIS 336 (Ky. Ct. App. 1908).

Where in an action by an insolvent corporation for the appointment of a receiver and a sale of its property, the holder of certain mortgage bonds is made a party defendant and files answer and counterclaim praying for an enforcement of its lien and a sale of the property, and asking the appointment of a receiver until the same be made, and making allegations sufficient to authorize the appointment of a receiver, the appointment of a receiver on its application is proper. (Decided under prior law) Lewis' Adm'r v. Bowling G. R. Co., 155 Ky. 681 , 160 S.W. 242, 1913 Ky. LEXIS 322 ( Ky. 1913 ).

The appointment of a receiver rests largely in the discretion of the chancellor, although it is not an unlimited discretion. The chancellor in this case did not abuse his discretion in appointing a receiver upon the showing that storage charges on the oil involved in a dispute as to ownership of the royalties was accumulating and would thereby necessarily decrease the fund which was eventually coming to some one or all of the parties. (Decided under prior law) Bradley v. Bradley, 194 Ky. 60 , 238 S.W. 170, 1922 Ky. LEXIS 102 ( Ky. 1922 ).

Appointment of receiver to manage farm was justified and common-law arbitration agreement was no defense where relationship existing between partners running a farm was so strained it was impossible to have cooperation between them and no award under the arbitration agreement had been made. (Decided under prior law) Jones v. Jones, 229 Ky. 71 , 16 S.W.2d 503, 1929 Ky. LEXIS 682 ( Ky. 1929 ).

The provisions of former law that forbid appointment of certain parties as receivers did not prevent appointment of trust company as special receiver for trust estates of which trust company was trustee, where such receiver was not affected by the character of private interests or adversary relation that disqualified it. (Decided under prior law) Jennings v. Fidelity & Columbia Trust Co., 240 Ky. 24 , 41 S.W.2d 537, 1931 Ky. LEXIS 342 ( Ky. 1931 ).

Ordinarily at least it is a sufficient reason for refusing the application for a receiver of mortgaged property that the land is ample security for the debt. (Decided under prior law) Mortgage Union of Penn v. King, 245 Ky. 691 , 54 S.W.2d 49, 1932 Ky. LEXIS 667 ( Ky. 1932 ).

A temporary receiver may be appointed on motion of any party to an action who shows that he has, or probably has, an “interest” in property which is in danger of being lost, removed, or materially injured. (Decided under prior law) Sipes v. Boehmer, 291 Ky. 824 , 165 S.W.2d 807, 1942 Ky. LEXIS 326 ( Ky. 1942 ).

In suit by stockholder to have a receiver pendente lite appointed for corporation, stockholder must make a showing that some of the corporation’s property was in imminent danger of being lost, removed or materially injured and that only the immediate appointment of a receiver could avert and prevent a harmful result to his right. (Decided under prior law) Dulworth & Burress Tobacco Warehouse Co. v. Burress, 369 S.W.2d 129, 1963 Ky. LEXIS 69 ( Ky. 1963 ).

The chancellor did not abuse his discretion in appointing a receiver where a Kentucky corporation had gone out of business leaving its remaining cash assets within the jurisdiction of the court where a question arose as to the indebtedness to the corporation of nonresident officers. (Decided under prior law) Diamonite Mfg. Corp. v. Clark Constr. Co., 446 S.W.2d 285, 1969 Ky. LEXIS 114 ( Ky. 1969 ).

4.— Circumstances Not Authorizing Appointment.

In action for dissolution of a partnership, where no disagreement among the partners is alleged, no fraud or wrongdoing on the part of any of them is charged, nor is it averred that the company or any of its members is insolvent, the only complaint alleged being the incompetency and mismanagement of an employe whose removal from the position of manager may be effected by discharging him at any time, appointment of a receiver is not justified. (Decided under prior law) Campbell v. Rich Oil Co., 96 S.W. 442, 29 Ky. L. Rptr. 716 (1906).

Receiver will not be appointed at the instance of the vendor, who has a lien for the purchase price, where the evidence fails to show that the property is in danger of being “materially” injured, though it may not be sufficient to satisfy the debt. (Decided under prior law) Murray v. Murray, 124 Ky. 426 , 99 S.W. 301, 30 Ky. L. Rptr. 586 , 1907 Ky. LEXIS 198 ( Ky. 1907 ).

Where it was not claimed that the mortgage, by its terms, was such as to appropriate to the payment of appellant’s debt the rents, issues or profits of the mortgaged property, the appellant was without legal right to subject rents to the payment of its debts but only had an equitable claim to do so; hence, a receiver should not have been appointed for the assigned estate of an assignor for the benefit of creditors, where the assignee was in possession of the property, and there existed no valid reason why the assignee could not and would not faithfully preserve and administer the property, and perform the orders of the court with reference to the same. (Decided under prior law) Deposit Bank of Smiths Grove v. Kirby, 175 Ky. 700 , 194 S.W. 929, 1917 Ky. LEXIS 382 ( Ky. 1917 ).

A receiver will not ordinarily be appointed where the party seeking such relief has another remedy at law which is adequate. (Decided under prior law) Elkhorn Hazard Coal Co. v. Fairchild, 191 Ky. 276 , 230 S.W. 61, 1921 Ky. LEXIS 312 ( Ky. 1921 ); Fleming v. Virginia Mining Co., 196 Ky. 38 , 244 S.W. 295, 1922 Ky. LEXIS 463 ( Ky. 1922 ).

A receiver will not be appointed where it appears that a greater injury will probably be caused by the appointment than by leaving the property undisturbed, for when a receiver is appointed for the property of a debtor upon the motion of a lienholder it is for the purpose of keeping and preserving the property so that the source of the security for the debt will not be destroyed, injured or removed and thus destroy or render less valuable the source of the security, and in such instances to sustain the motion, it must be shown that the receivership is necessary to prevent fraud, or to save the property from material injury or to rescue it from threatened destruction. (Decided under prior law) Elkhorn Hazard Coal Co. v. Fairchild, 191 Ky. 276 , 230 S.W. 61, 1921 Ky. LEXIS 312 ( Ky. 1921 ).

In an action, wherein the title to land is involved, a receiver should not be appointed for the land when it is not shown that the party applying for the receiver is not in the enjoyment of the land and all the rights which he claims in it; and if a party to the action is shown to be in possession and claiming the ownership of it, a receiver should not be appointed unless it appears that the party in possession is insolvent and committing waste thereon; and if the land is jointly owned, a receiver should not be appointed unless the one in possession is committing waste, or excluding the other joint owners, or at least doing something in derogation of the rights of the others interested, and there is no other available remedy to protect the rights of all. (Decided under prior law) Saylor v. Hilton, 190 Ky. 200 , 226 S.W. 1067, 1921 Ky. LEXIS 402 ( Ky. 1921 ).

Where the evidence made no showing of any danger of injury, loss or damage to the property involved, an order appointing a receiver should not have been made. (Decided under prior law) Greasy Creek Coal & Land Co. v. Greasy Creek Coal Co., 196 Ky. 67 , 244 S.W. 85, 1922 Ky. LEXIS 457 ( Ky. 1922 ).

Where it was quite conclusively proven that the property was worth more than when it was purchased, at which time $2,800 was paid, leaving a balance of $11,200 secured by a lien on it, and there was no proof of defendant’s insolvency, but it appeared that he owed about $350 of current debts and it was shown the property was in better physical condition than when he purchased it and there was not any proof of waste or bad management, the court erred in sustaining the motion for receiver made at the instance of the vendor in a suit filed by him to enforce his lien for the purchase price. (Decided under prior law) Fleming v. Virginia Mining Co., 196 Ky. 38 , 244 S.W. 295, 1922 Ky. LEXIS 463 ( Ky. 1922 ).

General creditors whose claims have not been reduced to judgment, and who can show no lien or other interest in the property are not entitled to the appointment of a receiver. (Decided under prior law) Black Hawk Coal Co. v. Hazard Fruit Co., 205 Ky. 447 , 266 S.W. 3, 1924 Ky. LEXIS 137 ( Ky. 1924 ).

In the absence of insolvency or some peculiar equity, simple unsecured creditors of a corporation, whose claims have not been reduced to judgment and who have no lien on property of corporation, are not entitled to have receiver appointed. (Decided under prior law) Oscar C. Wright Co. v. Steenman, 254 Ky. 381 , 71 S.W.2d 991, 1934 Ky. LEXIS 94 ( Ky. 1934 ).

Where stockholder of corporation filed suit to have receiver pendente lite appointed for corporation and after appointment had been signed but before person named had been qualified to act appellants appeared before judge and moved that appointment be set aside which appearance was accompanied by an affidavit wherein they offered to execute bond in their individual or corporate capacity for amount to satisfy any judgment which appellee might recover against the corporation and also to agree to submit to any injunction which would forbid any cash withdrawals from the corporation treasury, trial judge abused his discretion in declining to nullify his order to appoint a receiver, for the less drastic remedy of executing a bond which would fully protect appellee’s rights was available and it was court’s duty to utilize such remedy and thus such appointment was voided. (Decided under prior law) Dulworth & Burress Tobacco Warehouse Co. v. Burress, 369 S.W.2d 129, 1963 Ky. LEXIS 69 ( Ky. 1963 ).

5.Appointment of Interested Party.

Where the administration of the receivership has proceeded to a point where it would be detrimental to the interest of all parties concerned to discharge receiver who is an interested party and appoint another, this will not be done unless it appears that the present receiver has not properly administered the receivership. (Decided under prior law) Young v. Fidelity & Columbia Trust Co., 258 Ky. 263 , 79 S.W.2d 944, 1935 Ky. LEXIS 141 ( Ky. 1935 ).

Where in a foreclosure action against a mortgagor and his assignee for benefit of his creditors the assignee was appointed receiver it was not sufficient cause to reverse a Circuit Court judgment since the only objection made by mortgagee was that receiver had failed to collect rents collected by assignee prior to appointment of receiver from the assignee and no one had lost anything by reason of the appointment. (Decided under prior law) Title Ins. & Trust Co. v. Clark, 271 Ky. 22 , 111 S.W.2d 409, 1937 Ky. LEXIS 183 ( Ky. 1937 ).

6.— Consent to Appointment.

An interested party may be appointed by agreement of all the parties interested in the receivership. (Decided under prior law) Young v. Fidelity & Columbia Trust Co., 258 Ky. 263 , 79 S.W.2d 944, 1935 Ky. LEXIS 141 ( Ky. 1935 ).

7.— Appointment Voidable.

The appointment as receiver of a party interested in the action is not void, but voidable. (Decided under prior law) Young v. Fidelity & Columbia Trust Co., 258 Ky. 263 , 79 S.W.2d 944, 1935 Ky. LEXIS 141 ( Ky. 1935 ).

8.— Objection.
9.— — Waiver.

Where a party interested in the action is appointed as receiver any one person in interest has the right to intervene seasonably and object to the appointment but this is a right that may be waived. (Decided under prior law) Young v. Fidelity & Columbia Trust Co., 258 Ky. 263 , 79 S.W.2d 944, 1935 Ky. LEXIS 141 ( Ky. 1935 ).

10.Notice.

Where petition asserted a lien on and interest in certain property owned by defendant, on which attachments had been levied by persons other than plaintiffs, since no proof except the pleadings had been offered on the trial of the motion to appoint a receiver and since no notice had been given to the adverse parties, there was nothing to show an abuse of discretion by the court in refusing to appoint the receiver. (Decided under prior law) Woodward v. Woodward, 31 S.W. 734, 17 Ky. L. Rptr. 464 (1895).

The receiver may be appointed without notice when necessary to prevent irreparable loss; these are questions the court must decide on the facts, and though his decision may be erroneous, it is not void. (Decided under prior law) Wakenva Coal Co. v. Johnson, 234 Ky. 558 , 28 S.W.2d 737, 1930 Ky. LEXIS 219 ( Ky. 1930 ).

11.Powers and Duties.

The court cannot confer upon the receiver other or greater authority than is conferred by the statutes. (Decided under prior law) Hogg's Receiver v. Hogg, 265 Ky. 656 , 97 S.W.2d 582, 1936 Ky. LEXIS 558 ( Ky. 1936 ).

The power and duty of a receiver is to take charge of, hold, preserve and control personal property or real estate, the title to which is involved, or where there is an attempt to enforce a lien upon it in the action in which the receiver is appointed. (Decided under prior law) Hogg's Receiver v. Hogg, 265 Ky. 656 , 97 S.W.2d 582, 1936 Ky. LEXIS 558 ( Ky. 1936 ).

Where after a receiver was appointed the person for whose estate the receiver was appointed conveyed real estate to his wife and children without consideration, the receiver alone could not maintain an action in equity to set aside the conveyances but the creditors as the real parties in interest should bring or join in the action. (Decided under prior law) Hogg's Receiver v. Hogg, 265 Ky. 656 , 97 S.W.2d 582, 1936 Ky. LEXIS 558 ( Ky. 1936 ).

Where mortgagor made an assignment for benefit of creditors, mortgagee’s lien on rents, profits and issues of mortgaged property collected prior to a foreclosure suit in which assignee was also appointed receiver remained first and superior to any lien of the general creditors of the mortgagor and the receiver had to collect the rents received by it as assignee from itself and pay them into court in the foreclosure proceeding. (Decided under prior law) Title Ins. & Trust Co. v. Clark, 271 Ky. 22 , 111 S.W.2d 409, 1937 Ky. LEXIS 183 ( Ky. 1937 ).

12.Liability of Receiver.

A receiver is not absolutely liable for moneys placed in his possession, but must take care as good judgment requires. (Decided under prior law) Johnson v. Fleming, 116 Ky. 680 , 50 S.W. 855, 21 Ky. L. Rptr. 4 , 1899 Ky. LEXIS 5 ( Ky. 1899 ).

Where court fails to designate a depository and receiver deposits money in a bank generally recognized as solvent, he is not liable for the amount of the deposit if the bank fails. (Decided under prior law) Johnson v. Fleming, 116 Ky. 680 , 50 S.W. 855, 21 Ky. L. Rptr. 4 , 1899 Ky. LEXIS 5 ( Ky. 1899 ).

13.— Appropriation of Funds.

When a receiver appropriates funds for his own use or commingles them with his own funds interest can be allowed against him. (Decided under prior law) Higgins v. Shields, 151 Ky. 227 , 151 S.W. 391, 1912 Ky. LEXIS 775 ( Ky. 1912 ).

14.— Failure to Collect.

A receiver must keep an account of what he collects, and is liable for what he negligently fails to collect. (Decided under prior law) Higgins v. Shields, 151 Ky. 227 , 151 S.W. 391, 1912 Ky. LEXIS 775 ( Ky. 1912 ).

15.Denial of Compensation.

If receiver is guilty of misconduct or negligence, the court may deny him compensation. (Decided under prior law) Higgins v. Shields, 151 Ky. 227 , 151 S.W. 391, 1912 Ky. LEXIS 775 ( Ky. 1912 ).

16.Expenses.

Expenses incurred by receiver in operation of business put into his hands were not chargeable to plaintiffs when fund in court was insufficient therefor. (Decided under prior law) Crump & Field v. First Nat'l Bank, 229 Ky. 526 , 17 S.W.2d 436, 1929 Ky. LEXIS 793 ( Ky. 1929 ).

Research References and Practice Aids

Cross-References.

Bonds, KRS 62.050 .

City recreational project, receiver to administer in case of default, KRS 97.190 .

Oath, KRS 62.010 .

Sureties, release and indemnity, proceeding for, KRS 62.090 .

Waste, receiver appointed to prevent, KRS 381.420 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Appointing Receiver, Form 157.03.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Receivership, § 157.00.

ALR

Mechanic’s lien, right to appointment of receiver in action to enforce. 1 A.L.R. 1466.

Bond of receiver, leave of court as prerequisite to action on. 2 A.L.R. 574.

Title to assets, when receiver of corporation deemed to be vested with, so as to entitle him to sue in a foreign jurisdiction. 3 A.L.R. 262; 29 A.L.R. 1495.

Rents and profits, provision in mortgage as to, as authorizing appointment of receiver for. 4 A.L.R. 1415; 55 A.L.R. 1020; 87 A.L.R. 625; 91 A.L.R. 1217.

Minority stockholders’ right to appointment of receiver for solvent corporation under statute permitting appointment of receiver when the court deems it necessary to secure ample justice to the parties. 5 A.L.R. 368.

Employes, liability of receiver in his official capacity for torts or negligence of. 10 A.L.R. 1055.

Continuance of business by receiver at loss. 12 A.L.R. 292.

Jurisdiction of action involving appointment of receiver for foreign corporation. 18 A.L.R. 1404; 89 A.L.R. 736; 155 A.L.R. 1231; 72 A.L.R.2d 1211.

Inspection of corporate books and records by stockholder for purpose of determining advisability of receivership. 22 A.L.R. 66; 43 A.L.R. 783; 59 A.L.R. 1373; 80 A.L.R. 1502; 174 A.L.R. 262.

Mortgagee’s right to appointment of receiver. 26 A.L.R. 33; 36 A.L.R. 609; 55 A.L.R. 533; 87 A.L.R. 1008; 111 A.L.R. 730, superseded in part by 82 A.L.R.2d 1075.

Failure to obtain permission to sue receiver as affecting jurisdiction of action. 29 A.L.R. 1460.

Pleading in suit for receivership, right under general prayer to relief inconsistent with prayer for specific relief. 30 A.L.R. 1182.

Invalidly appointed receiver’s right to compensation as such. 34 A.L.R. 1356.

Liens, power of court to authorize or direct receiver to sell property free from. 35 A.L.R. 255; 78 A.L.R. 458; 120 A.L.R. 921.

Redemption from judicial, execution or tax sale, right of receiver to sell insolvent’s right of. 35 A.L.R. 262.

Public officer, receiver as, within constitutional or statutory provision. 38 A.L.R. 812.

Contempt by conduct pending receivership as affected by validity of appointment. 39 A.L.R. 33; 48 A.L.R. 241.

Failure of receiver to discharge tax liens, effect of. 39 A.L.R. 1415.

Private corporation, power of receiver of, to issue receiver’s certificates. 40 A.L.R. 244.

Summary manner or summary proceedings, right of receiver to take property in, from strangers to the record. 40 A.L.R. 903; 43 A.L.R. 1340.

Inherent power of equity, at instance of minority stockholder, to appoint receiver for solvent going corporation, on ground of mismanagement or dissensions. 43 A.L.R. 242; 61 A.L.R. 1212; 91 A.L.R. 665.

Foreclosure of mortgage on property in hands of receiver, leave of court as essential to. 43 A.L.R. 1357.

Reformation of instrument as against receiver of maker. 44 A.L.R. 117; 79 A.L.R.2d 1180.

Assumed or fictitious name statutes, as to doing business under, as affecting action by receiver of firm which has failed to comply with statute. 45 A.L.R. 245; 42 A.L.R.2d 516.

Lease, sale of, by receiver as violating covenant in lease against assignment. 46 A.L.R. 851.

Degree of proof necessary in contempt proceeding with reference to receivership. 49 A.L.R. 988.

Preferred stockholders’ right to have receiver appointed. 50 A.L.R. 261.

Dissolution or expiration of charter of corporation, appointment of receiver after. 54 A.L.R. 1127; 109 A.L.R. 1526.

Appointment of receiver after dissolution, or expiration of charter, of foreign corporation. 54 A.L.R. 1130; 109 A.L.R. 1526.

Dividends wrongfully paid, right of receiver for corporation to recover, or to enforce liability of directors for wrongfully declaring them. 55 A.L.R. 115; 76 A.L.R. 885; 109 A.L.R. 1381.

Larceny by general owner, of property in possession of receiver. 58 A.L.R. 336.

Tenant’s liability for rent subsequent to appointment of receiver in proceeding by landlord or parties in privity with him. 61 A.L.R. 372.

Conditional vendee, right of receiver of, to avail himself of defect in execution of, or filing, or failure to file, contract. 61 A.L.R. 975.

Conditional vendee, right of purchaser from receiver of, to avail himself of defects in execution of, or filing, or failure to file, contract. 61 A.L.R. 986.

Attorney, right of receiver who is, to employ another attorney at expense of estate. 64 A.L.R. 1541.

Caveat emptor, doctrine of, as applied to purchaser at receiver’s sale. 68 A.L.R. 664.

Liability of one procuring appointment of receiver for expenses of receivership. 68 A.L.R. 878.

Dividends wrongfully paid by corporation, right of receiver to recover. 76 A.L.R. 885; 109 A.L.R. 1381.

Deficiency of mortgage debt, right to and conditions of appointment of receiver of rents and profits for protection of one liable for. 78 A.L.R. 872.

Duty of receiver to apply to court before making outlays for improvement, repairs, or upkeep of property. 79 A.L.R. 164.

Partner or joint adventurer, accountability of, for profits earned subsequent to death or dissolution as affected by receivership. 80 A.L.R. 35; 55 A.L.R.2d 1391.

Mechanics’ lien, right of receiver of claimant to file. 83 A.L.R. 21.

Insurance agent’s authority to issue policy to himself as receiver of property insured. 83 A.L.R. 1521.

Claim of lessor or privy against receiver of lessee in respect of leasehold which receiver elects not to take over. 84 A.L.R. 892; 111 A.L.R. 556.

Appointment of receiver at instance of debtor. 84 A.L.R. 1456; 90 A.L.R. 406.

Public utility’s right to shut off supply unless receiver in possession of property will pay charges antedating his appointment. 86 A.L.R. 352.

Mortgage foreclosure suit, power of receiver pending, and before sale, as regards rental or other conditions of occupation with respect to persons in possession under lease or agreement subordinate to mortgage. 86 A.L.R. 366.

Receiver, necessity of consent of court appointing to action in other court to establish or liquidate claim against person or corporation for whom receiver appointed. 91 A.L.R. 996.

Possession of property by mortgagor as affecting right to receiver. 91 A.L.R. 1236.

Workers’ compensation, duty of receiver of self-insurer employer to continue payments under award made prior to receivership. 94 A.L.R. 863.

Right of receiver or court appointing him to contest or pass upon merits or amount of claim, as affected by pendency in another forum of action on claim or judgment thereon. 96 A.L.R. 485; 168 A.L.R. 671.

Receiver or court appointing him, right of, to contest or pass upon merits or amount of claim as concluded by pendency of action on claim in another forum. 96 A.L.R. 485; 168 A.L.R. 671.

Cash, discretion of court or receiver as to whether receiver’s sale shall be made for, or on credit. 100 A.L.R. 937.

Fund or securities deposited by foreign corporation with state official as security for its obligations, appointment of receiver for corporation as remedy of creditor to reach. 101 A.L.R. 499.

Executor, administrator, guardian or trustee, appointment of receiver for corporation as affecting status as. 102 A.L.R. 124.

Trustee, right of receiver for, to take over the trust and exercise rights and powers of trustee. 102 A.L.R. 124.

Mortgage foreclosure suit, right of bondholder who is party defendant in, to apply for appointment of receiver. 103 A.L.R. 1228.

Mortgage foreclosure suit brought after appointment of receiver for mortgagor, failure to take judgment or deficiency in, as affecting right to its allowance as a claim against receiver. 104 A.L.R. 1141.

Recovery back by receiver or other liquidator of insolvent corporation of payments improperly made during receivership or liquidation. 105 A.L.R. 1519.

Alimony, power of court to appoint receiver for future earnings of husband in order to enforce judgment for. 106 A.L.R. 588.

Incompetent person, appointment of receiver to preserve property of, prior to his adjudication as such. 107 A.L.R. 1395.

Corporate bonds or other obligations, express restrictions on right of action by individual holder of one or more of series of, as affecting application for appointment of receiver. 108 A.L.R. 120; 174 A.L.R. 435.

Contract creditor without lien, appointment of receiver of property of individual debtor or partnership on application of. 109 A.L.R. 279.

Probability that plaintiff will be entitled to judgment as condition of appointment of receiver pendente lite. 109 A.L.R. 1212.

Acceptance of rent from receiver as waiver of right to forfeit lease because of tenant’s past or future violation of the terms. 109 A.L.R. 1267.

Appointment of receiver after decree or judgment. 111 A.L.R. 500.

Appearance to seek relief in connection with receivership proceedings as submission to jurisdiction. 111 A.L.R. 933.

Collateral, power of receiver of liquidator to exchange. 112 A.L.R. 476.

Special assessments, power of court to appoint receiver or other agent for collection and distribution of. 113 A.L.R. 755.

Receiver or other agent to collect and distribute special assessments, power of court to appoint. 113 A.L.R. 755.

Banks, receiver as proper party to enforce civil liability of directors or officers of national bank for loss due to false reports or statements. 114 A.L.R. 478.

Legacy charged upon land devised, appointment of receiver to collect and apply rent to payment of. 116 A.L.R. 45; 134 A.L.R. 361.

Fraudulent conveyance act as affecting appointment of receiver in suit to set aside conveyance. 119 A.L.R. 956.

Undivided or successive interests in property or fund, right to appointment of receiver in action between persons owning or claiming to own. 127 A.L.R. 1228.

Remainderman’s right, upon life tenant’s failure to make repairs to appointment of receiver. 128 A.L.R. 228; 175 A.L.R. 1434.

Interlocutory order of one judge concerning compensation of receiver as binding upon another judge in same case. 132 A.L.R. 76.

Conclusiveness of order of one judge appointing receiver on another judge in same case. 132 A.L.R. 85.

Valuation of securities in determining question of insolvency justifying appointment of receiver. 133 A.L.R. 1068.

Ex parte appointment of receiver for property of partnership. 169 A.L.R. 1127.

Judicial sales by creditors and receivers, estoppel of or waiver by parties or participants to assert. 2 A.L.R.2d 197.

Necessity of consent of court to tax sale of property in custody of receiver appointed by court. 3 A.L.R.2d 893.

Costs and other expenses, incurred by receiver whose appointment was improper, as chargeable against estate. 4 A.L.R.2d 160.

Public sale of receiver, what constitutes. 4 A.L.R.2d 575.

Tort action, appointment of receiver at instance of plaintiff in. 4 A.L.R.2d 1278.

Jurisdiction exercised by federal court in diversity of citizenship, pending receivership insolvency, or liquidation proceeding before state tribunal. 11 A.L.R.2d 460.

Effect of nonsuit, dismissal or discontinuance of action upon previous order appointing receiver. 11 A.L.R.2d 1407.

Succession of receiver to statutory right of action for recovery of money lost at gambling. 18 A.L.R.2d 1002.

Appointment of receiver in proceedings arising out of dissolution of partnership or joint adventure otherwise than by death of partner or at instance of creditor. 23 A.L.R.2d 583.

Income tax: section 52(a) of the internal revenue code requiring receivers, trustees in bankruptcy or assignees operating business or property of corporations to make income tax returns and the like. 31 A.L.R.2d 877.

Receiver as succeeding to rights under “shop right rule” or license giving employer limited rights in employes’ inventions and discoveries. 61 A.L.R.2d 408.

Corporate receiver as affected by statute denying defense of usury to corporation. 63 A.L.R.2d 946.

Appeal of order appointing, or refusing to appoint, receiver. 72 A.L.R.2d 1009.

Appeal of order discharging, or vacating appointment of, or refusing to discharge, or vacate appointment of receiver. 72 A.L.R.2d 1075.

What amounts to representation of adverse interest disqualifying an attorney for appointment to represent trustee or receiver in bankruptcy. 79 A.L.R.2d 759.

Propriety of appointing receiver, at behest of mortgagee, to manage or operate property during foreclosure action. 82 A.L.R.2d 1075.

Receiver’s personal liability for negligence in failing to care for or maintain property in receivership. 20 A.L.R.3d 967.

What constitutes waste justifying appointment of receiver of mortgaged property. 55 A.L.R.3d 1041.

Appointment or discharge of receiver for marital community property necessitated by suit for divorce or separation. 15 A.L.R.4th 224.

31A.120. Use of proof of and performance of duties of predecessor.

The master commissioner or receiver may use any proof reduced to writing and signed by his predecessor, and may execute any order or judgment which it was the duty of his predecessor to have executed, and which remains unexecuted.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 53, effective January 2, 1978.

31A.990. Penalties.

  1. If any master commissioner or receiver fails to comply with his duties as defined by appropriate court order, he shall be guilty of a violation, and, upon conviction, shall be removed from office.
  2. If any master commissioner or receiver knowingly omits or fails to report, as required by court order or Supreme Court rule, a correct statement of the amount required to be reported, or the amount of his office expenses, or knowingly makes or subscribes any false statement concerning the same, he shall be guilty of a Class D felony, and the judgment of conviction shall declare the office vacant.

History. Enact. Acts 1978, ch. 384, § 8, effective June 17, 1978; 1992, ch. 463, § 3, effective July 14, 1992.

Research References and Practice Aids

Cross-References.

Classification of offenses, penalties, see KRS 532.020 .

CHAPTER 32 Financing of Unified State Court System

32.010. Intent — Construction of law. [Repealed.]

Compiler’s Notes.

This section (Acts 1974, ch. 369, § 1) was repealed by Acts 1976, ch. 201, § 5, effective July 1, 1976. For present law see KRS 32.011 .

32.011. Construction of law.

Nothing contained in KRS 32.011 to 32.070 shall be construed as limiting, restricting, or terminating the authority of local governmental units, including cities, counties, and urban-county governments, to provide financial support for the court system and the offices of the Commonwealth’s attorneys which are serving that local community, and all such units of local government are further authorized to supplement the financial support provided thereto by the state under KRS 32.011 to 32.070 .

History. Enact. Acts 1976, ch. 201, § 1, effective July 1, 1976.

Opinions of Attorney General.

Although the General Assembly has made no express provision for the appointment of an assistant Commonwealth’s attorney in the 36th judicial district, the two fiscal courts in that district could enact an ordinance permitting the Commonwealth’s attorney to appoint an assistant and providing a salary for the assistant. OAG 76-524 .

KRS 15.750 , KRS 67.083 and this section when read together authorize a fiscal court to contribute county money to the payment of the salary of an assistant Commonwealth’s attorney. OAG 79-190 .

32.020. Expense allowances for judges of Court of Appeals and circuit courts. [Repealed.]

Compiler’s Notes.

This section (Acts 1974, ch. 369, § 2; 1976, ch. 62, § 45) was repealed by Acts 1976, ch. 201, § 5, effective July 1, 1976.

Legislative Research Commission Notes.

Repeal of this section by Acts 1976, ch. 201, § 5, approved March 29, 1976, prevails over earlier amendment of section by Acts 1976, ch. 62, § 45, which was approved March 17, 1976.

32.021. Facilities and services for circuit court. [Expired.]

Compiler’s Notes.

Acts 1976, ch. 201, § 6 provided that this section (Acts 1976, ch. 201, § 2) should expire on January 1, 1978.

32.030. Court reporters and secretaries. [Repealed.]

Compiler’s Notes.

This section (Acts 1974, ch. 369, § 3; 1976, ch. 62, § 46) was repealed by Acts 1976, ch. 201, § 5, effective July 1, 1976. For present law see KRS 32.031 .

Legislative Research Commission Notes.

Repeal of this section by Acts 1976, ch. 201, § 5, approved March 29, 1976, prevails over earlier amendment of section by Acts 1976, ch. 62, § 46, which was approved March 17, 1976.

32.031. Secretaries for Circuit Judges.

Each Circuit Judge may employ a secretary. The secretary shall be appointed by and shall hold office at the pleasure of the judge. The salary for the secretary, payable out of the State Treasury, shall be commensurate with the secretary’s education, training, and experience based upon the guidelines established by the classification and compensation plan for comparable positions maintained by the state Personnel Cabinet pursuant to KRS 64.640 . Persons employed as secretaries to Circuit Judges shall be members of the Kentucky Employees Retirement System in accordance with the provisions of KRS 61.510 to 61.692 .

History. Enact. Acts 1976, ch. 201, § 3, effective July 1, 1976; 1980, ch. 188, § 13, effective July 15, 1980; 1998, ch. 154, § 58, effective July 15, 1998.

32.040. Appointment of full-time assistant commonwealth attorneys, secretaries and district detectives. [Repealed.]

Compiler’s Notes.

This section (Acts 1974, ch. 369, § 4; 1976, ch. 62, § 47) was repealed by Acts 1976, ch. 201, § 5, effective July 1, 1976.

Legislative Research Commission Notes.

Repeal of this section by Acts 1976, ch. 201, § 5, approved March 29, 1976, prevails over earlier amendment of section by Acts 1976, ch. 62, § 47, which was approved March 17, 1976.

32.041. Facilities and services for commonwealth’s attorneys. [Expired.]

Compiler’s Notes.

Acts 1976, ch. 201, § 6 provided that this section (Acts 1976, ch. 201, § 4) should expire on January 1, 1978.

32.050. Retirement system coverage. [Repealed.]

Compiler’s Notes.

This section (Acts 1974, ch. 369, § 5) was repealed by Acts 1976, ch. 201, § 5, effective July 1, 1976. For present law see KRS 32.031 .

32.060. Effective date of appointments, employment of persons, and expense allowances. [Repealed.]

Compiler’s Notes.

This section (Acts 1974, ch. 369, § 6) was repealed by Acts 1976, ch. 201, § 5, effective July 1, 1976.

32.070. Expense allowances for grand jurors, petit jurors, and persons summoned for jury service.

Beginning July 1, 1976, or at such earlier date as may be fixed as hereinafter provided, grand jurors, petit jurors and persons summoned for jury service in Circuit Court eligible for payment of the compensation designated in KRS 29A.170(1) shall be paid, in addition thereto, the sum of seven dollars and fifty cents ($7.50) per day as reimbursement of expenses incurred, which sum is hereby determined to be the equivalent of the minimum daily expenses reasonably to be incurred by such juror or person. Payment of such reimbursement for expenses may be made beginning as of such date prior to July 1, 1976, but not prior to July 1, 1974, as may be fixed by the Governor upon recommendation of the secretary of justice and public safety if and to the extent that prior to July 1, 1976, the Commonwealth of Kentucky is awarded grant funds by the Law Enforcement Assistance Administration of the United States Department of Justice on a matching basis of not less than ninety percent (90%) federal funds and ten percent (10%) state funds which grant funds are sufficient to pay the full cost of the reimbursement of expenses, and of the administrative expenses related thereto, authorized by this section from the date so fixed through June 30, 1976. Eligible state funds appropriated for the 1974-1976 biennium may be used for matching purposes so long as such use does not reduce the level of services provided in the executive budget for that biennium.

History. Enact. Acts 1974, ch. 369, § 7; 2007, ch. 85, § 117, effective June 26, 2007.

Opinions of Attorney General.

The jurors’ per diem expense allowance and the daily compensation should be administered in a single fund. OAG 76-222 .

CHAPTER 34 Judicial Commissions

Judicial Nominating Commissions

34.010. Terms — Appointments.

  1. Members of judicial nominating commissions, both statewide and local, shall hold office for a term of four (4) years and until such time as their successors shall be appointed or elected, except as provided in subsection (2).
  2. Of those members appointed by the Governor to the first judicial nominating commissions, the appointments shall be as follows:
    1. One (1) member of the political party having the largest number of registered voters and one (1) member of the political party having the second largest number of registered voters shall be appointed for a term to expire January 1, 1980; and
    2. One (1) member of the political party having the largest number of registered voters and one (1) member of the political party having the second largest number of registered voters shall be appointed for a term to expire January 1, 1978.
  3. Thereafter, as each term expires, the vacancy so created shall be filled by an appointee from the same political party for a term of four (4) years.
  4. Appointments or elections to fill the unexpired term of a member shall be for the remainder of the term.
  5. Members representing the bar shall be elected according to rules promulgated by the Supreme Court with the expenses of the elections being paid from the State Treasury.

History. Enact. Acts 1976, ch. 51, § 1, effective March 9, 1976.

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Kentucky Divorce Statute: A Call for Reform, 66 Ky. L.J. 724 (1977-1978).

34.020. Compensation of members.

Members of judicial nominating commissions shall receive no compensation for their services but shall be paid their necessary expenses for each day spent in the performance of their duties. All claims for expenses shall be approved by the Chief Justice or his designee and shall be paid out of the State Treasury.

History. Enact. Acts 1976, ch. 51, § 2, effective March 9, 1976.

34.030. Administrative services — Records.

The Administrative Office of the Courts shall provide administrative support for, and maintain the records of, judicial nominating commissions. The director of the Administrative Office of the Courts shall certify the costs for these services to the Chief Justice who, upon verification, shall certify the expenses for payment out of the State Treasury.

History. Enact. Acts 1976, ch. 51, § 3, effective March 9, 1976.

Judicial Retirement and Removal Commission

34.310. Membership.

  1. The members of the Judicial Retirement and Removal Commission to be selected from among the Judges of the Court of Appeals, the Circuit Judges, and the District Judges, shall be selected according to rules promulgated by the Supreme Court.
  2. The member of the commission to be appointed by the governing body of the bar shall be appointed according to rules promulgated by the Supreme Court.
  3. The members of the commission appointed by the Governor shall include one (1) person from each of the two (2) political parties of the Commonwealth having the largest number of registered voters.
  4. All members of the commission shall serve until their successors are elected or appointed, as the case may be.

History. Enact. Acts 1976, ch. 68, § 1; 1976 (Ex. Sess.), ch. 14, § 9.

Research References and Practice Aids

Cross-References.

Judicial retirement and removal commission (now Judicial Conduct Commission), SCR 4.000 to 4.290.

34.320. Compensation — Expenses.

Members of the Judicial Retirement and Removal Commission who do not otherwise receive a salary from the State Treasury shall receive sixty dollars ($60) for each day they are in session or on official duty. All members shall be reimbursed for their necessary expenses for each day they are in session or on official duty. All claims shall be approved by the Chief Justice or his designee and shall be paid out of the State Treasury.

History. Enact. Acts 1976, ch. 68, § 4, effective March 23, 1976.

Opinions of Attorney General.

A part-time assistant county attorney who is appointed to the membership of the Kentucky judicial retirement and removal commission is not eligible to receive per diem compensation for his service on the commission in light of the clear language of this section. OAG 80-127 .

34.330. Oaths — Testimony — Evidence — Contempt proceedings.

In the exercise of its powers and duties, the Judicial Retirement and Removal Commission may administer necessary oaths, take testimony under oath, compel the attendance of witnesses, and compel the production of records and other evidence. If any witness refuses to testify concerning any matter on which he may lawfully be interrogated, any Circuit Judge, on application of the commission may compel obedience by proceedings for contempt as in the case of disobedience of a subpoena issued from the Circuit Court.

History. Enact. Acts 1976, ch. 68, § 3; 1976 (Ex. Sess.), ch. 14, § 10.

Research References and Practice Aids

Cross-References.

Judicial retirement and removal commission (now Judicial Conduct Commission), SCR 4.030.

34.340. Majority vote required.

No justice or judge shall be retired for disability or suspended without pay or removed for good cause except upon a majority vote of members of the Judicial Retirement and Removal Commission.

History. Enact. Acts 1976, ch. 68, § 2, effective March 23, 1976.

Research References and Practice Aids

Cross-References.

Judicial Retirement and Removal Commission (now Judicial Conduct Commission), see SCR 4.00 et seq.