Request By:
Honorable Kendall Robinson
Owsley County Attorney
P.O. Box 34
Booneville, Kentucky 41314
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter concerns questions about a trial commissioner of a district court. Such courts come into existence on January 2, 1978. Your county of Owsley will be in the multicounty twenty-third judicial district.
Question No. 1:
"Does that attorney who is appointed in the county as a trial commissioner have to reside in that county or in the district? Specifically, could an attorney be appointed a trial commissioner by the district judge in a multi-county district when the attorney lives in one county, outside of the district, but maintains an office within the district or within the county for which he would be appointed trial commissioner?"
Section 113(5) of the Kentucky Constitution, as amended, provides in part that "In any county in which no district judge resides the chief judge of the district shall appoint a trial commissioner who shall be a resident of such county and who shall be an attorney if one is qualified and available." (Emphasisy added). The answer to your question is that § 113 of the Constitution requires that the attorney, serving as trial commissioner in this factual situation, actually reside in the county for which he is appointed, and which county is within the district of the chief judge appointing him. Merely maintaining an office in the county of appointment would not satisfy the constitutional requirement.
It has been written that "The court, therefore, in construing a constitutional enactment, is usually said to be limited to the language of the enactment itself." 16 Am.Jur.2d, Constitutional Law, § 70, p.p. 248-249. Here the language of § 113, Constitution, reads: "trial commissioner, who shall be a resident of such county." (Emphasis added). The language is explicit, unequivocal, and clear. The courts would be bound by it. The provision is positive and free from all ambiguity, and the courts would have to accept it. In a Missouri case, State ex rel. Randolph County v. Walden, 357 Mo. 167, 206 S.W.2d 979 (1947), the court wrote that it is the function of the courts to construe, not rewrite, the Constitution. See also Section 9 of H.B. 32 [1976 Extraordinary Session].
Question No. 2:
"If that attorney would not qualify, since he would not reside within the county for which he would be appointed trial commissioner, can someone other than an attorney be appointed, according to your understanding and interpretation of the judicial amendment in the Rules of the Supreme Court?"
Under § 113, Constitution, as amended, where there is no qualified attorney to serve as trial commissioner in this situation, then according to the express terms of this section a person who is not an attorney can be appointed to be trial commissioner in such county, provided he is a resident thereof.