Request By:
Honorable J. W. Jones
Attorney for City of St. Matthews
922 Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your problem relates to KRS 23.045, which reads:
"It shall be the duty of the Supreme Court to establish the terms and dates for holding court in each of the circuit courts of this commonwealth. Before fixing such terms and dates of any circuit court, the Supreme Court shall consult the circuit judge of the particular court under consideration."
The above legislation became effective June 19, 1976. The statute today has the same language of the original enactment in 1962 except that "Supreme Court" has been substituted for "Court of Appeals." The Circuit Court in Jefferson County is one of "continuous session, " and it is not a "term" court. It does not have a regular term or terms in the usual statutory sense. Under the continuous session classification that Court is holding court every month. Harrod v. Commonwealth, Ky., 253 S.W.2d 574 (1952), 575. This is the practical meaning of "continuous session. " There is no such snimal as "continuous term," since the word "continuous" and "term" are in conflict in their inherent meanings. "Continuous term" is indeed a contradiction. See KRS 24.180.
You have the immediate problem of filing a petition for the City of St. Matthews [4th class city] for annexation of territory under KRS 81.210. You described it as follows:
"KRS 81.210 provides for certain procedure by cities of the fourth class in the annexation of territory. Included in this procedure is the filing of a petition by the city in the local circuit court, asking for judgment of annexation of the subject territory. The statute then provides: 'The petition shall be filed not less than 20 days before the first day of the next succeeding term of the circuit court in that county.'"
Your question reads:
"As attorney for the City of St. Matthews, I need your advice and opinion as to what action, if any, the Supreme Court has taken with respect to changing the Jefferson Circuit Court into a court of terms, and further, as to whether the duty which said statute places on the Supreme Court is mandatory. "
Under KRS 81.210, the Court tries the case, even where protests are filed, without the intervention of a jury.
Of course, it is the mandatory duty of the Supreme duty of the Supreme Court of Kentucky to establish terms for the circuit courts under KRS 23.045. The word "shall" in the statute means that it is mandatory. KRS 446.010(29). However, the Chief Justice of the Supreme Court of Kentucky has over the years administratively interpreted the statute as applying, as to fixing of "terms," to only the multiple-county circuits and not to courts of continuous session. Of course, that administrative practice by the Chief Justice does not represent an opinion of the Supreme Court as such, and it has no precedential effect as such. In any event the matter would ultimately have to be decided by the Supreme Court.
In view of the administrative practice of the Chief Justice in not altering the continuous session aspect of the Jefferson Circuit Court system, it is our view that the requirement of filling the annexation petition "not less than 20 days before the first day of the next succeeding term" [KRS 81.210] has no meaningful application in Jefferson County. "It has always been a recognized power of courts in the construction of statutes to delete or interpolate words to prevent an absurd consequence or to resolve an ambiguity in order to carry into effect the spirit, purpose and intent of the lawmakers." City of Owensboro v. Noffsinger, Ky., 280 S.W.2d 517 (1955), 519.