Request By:
Colonel George M. Chinn
Deputy Director
Kentucky Historical Society
Route #4
Harrodsburg, Kentucky 40330
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your specific question is whether or not H.B. 23, Chapter 22, Section 7, of the 1976 Extraordinary Session, mandates that the district and circuit courts be combined on the same floor.
You have sent us a recent clipping from the Harrodsburg Herald indicating that plans are being made to house both the district and circuit court systems of Mercer County on the second floor of the Courthouse. The second floor would thus house a courtroom, chambers for the judges, office space for the staffs, clerk's offices and jury facilities. The news article has an accompanying architectural drawing (alternative no. 1) indication that one courtroom will serve both the circuit and district court.
You point out that historically in all of the 120 counties the inferior courts (county and quarterly) are located on the first floor of the courthouse and the circuit court is on the second floor. As you further point out, this time honored custom extends back for more than 500 years of Anglo-Saxon judicial procedure. Your letter contained this:
"The separation by different floors had its origin as a symbol of equality for all of English justice in that a citizen on trial in the lower court had, upon entering the court house, visual evidence that there was a court above in the event justice had not been done. Hence the common expression, 'carried to a higher court.' The Supreme Court of the United States has ruled in several instances that under certain circumstances that common law as practiced in Kentucky whereby those things established by tradition, custom, immemorable habit, and regular usage, by constant acceptance sometime proves stronger than the written law."
Since Harrodsburg prides itself as being the site where the first court of justice was established in Kentucky, 1 you not only resent the abolishment of a long respected historic symbol but question its legality.
Section 7 (1) and (2), of H.B. 23 reads:
"(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), for:
(a) A courtroom or courtrooms for the circuit and the district court;
(b) Chambers for the circuit judge and district judge or judges;
(c) Office space for the circuit and district court staffs;
(d) Facilities for the circuit clerk's operations;
(e) Jury facilities for the circuit and the district courts; and
(f) 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."
We can find nothing in the statutes, enacted prior to H.B. 23, dealing explicitly or implicity with the matter of the relative physical locations of the county and circuit courts. In other words, there is nothing in the prior statutes suggesting that the two courts have to be on different floors of a courthouse or on the same floor. Such a legislative state, however, silently recognizes the ancient practice of maintaining the circuit and inferior courts on different floors of the courthouse, with the "big" 2 court [circuit court] being on the second floor. The peoples' appraisal of the circuit court's importance is not without merit, since from a pragmatic viewpoint, cases tried and not appealed usually constitute res adjudicata, and the parties to the suit are bound by the "law" as handed down by the circuit judge. Thus, in enacting H.B. 23, Section 7, it is presumed the legislature was aware of the law about the situs of courts and the historic practice of the physical separation of those courts. Button v. Hikes, 296 Ky. 163, 176 S.W.2d 112 (1943) 117.
Under Section 7 (1) of H.B. 23, the circuit and district courts must be held in the county courthouse of each county unless otherwise ordered by the Supreme Court of Kentucky. Subsection (2) of Section 7 provides that every county [or urban county government, where applicable] shall provide such reasonably available space, which would not disrupt the operation of county government, as necessary in the county courthouse, or other county facilities permitted in subsection (1), for, inter alia, "a courtroom or courtrooms for the circuit and the district court". (Emphasis added). The wording here leaves it on a flexible and permissive basis as to whether or not the two courts will operate on different floors or on the same floor. The language also permits the courts to use the same courtroom.
In conclusion, it is our opinion that H.B. 23 does not mandate the placing of the circuit and district courts on the same floor or placing them in the same courtroom. See KRS 446.080.
Footnotes
Footnotes
1 Collins, History of Kentucky, Vol II (1874) p. 606.
2 In local county parlance the circuit court has always been referred to as the big court.