Request By:
Mr. David H. Thomason
Henderson County Attorney
Courthouse
Henderson, Kentucky 42420
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A paternity action must be brought by the county attorney upon the request of the complainant. KRS 406.021(1). As county attorney, on January 13, 1977, you represented a complainant in a paternity action in the Henderson County Court; and the jury returned a verdict against the complainant and in favor of the alleged father. In your professional opinion in the light of evidence adduced at the county court trial, the chances of her prevailing are almost nil. Your question is as follows:
"Whether a County Attorney must file an appeal to the Circuit Court on a paternity action when the complainant loses in County Court if the County Attorney feels that the chances of the complainant prevailing in Circuit Court are almost nil. "
An appeal may be had from the county court to the circuit court if prosecuted within sixty (60) days from the date of judgment. KRS 406.051. The county attorney is not expressly mentioned in connection with such appeal. However, the statute [KRS 406.051] in no way purports to limit or restrict the complainant's right to appeal by way of imposing a condition that such appeal by a complainant may be had if the county attorney believes there is a fair chance that the circuit court might reverse the lower court. There is simply no such condition.
While KRS 406.051 does not expressly provide that the county attorney must represent the complainant on an appeal to circuit court, the nature of his function [KRS 406.021] in bringing the action in county court tells us that impliedly, if the action is to mean anything ultimately, he has the duty to prosecute the appeal for the complainant.
The range of duties of a public officer is discussed in 63 Am.Jur.2d, Public Officers and Employees, § 265, p. 784:
"The duties of a public office include all those which fairly lie within its scope, those which are essential to the accomplishment of the main purposes for which the office was created, and those which, although incidental and collateral, are germane to, or serve to promote or benefit, the accomplishment of the principal purposes. But these implications are not to be extended beyond the fair inferences to be gathered from the circumstances of each case."
It has been written that "filiation statutes are generally considered to represent an exercise of the police power of the state for the primary purposes of securing the support and education of an illegitimate child and of protecting society by preventing such child from becoming a public charge." There you have a two-pronged purpose. 10 Am.Jur.2d, Bastards, § 75, p. 901. It has also been written that where a statute provides for a prosecuting attorney's bringing the bastardy suit, "such a statute was designed to provide counsel at the expense of the state for every mother who desired to avail herself of its provisions. . ." (Emphasis added). Id., § 80.
When we consider the dual purpose of paternity actions [for the child and society], and when we consider that the mother knows the person or persons with whom she has engaged in sexual intercourse leading up to impregnation and birth, it is our opinion that KRS Chapter 406, when viewed in its entirety, requires the county attorney to prosecute the appeal to circuit court if the complainant wishes to avail herself of that remedy. It seems to us that her taking an appeal to the circuit court is her right if she wishes to exercise it, and the county attorney's professional view of the probable judicial result cannot be used to prevent her taking the appeal to be conducted by the county attorney. While the "look that lies in a woman eyes" [Lord Byron] may be the undoing of a man, the question in the bastardy cases is always: which man is the father of the child? We think a woman has the right to pursue that vital question on appeal to circuit court undeterred by the judgment or professional assessment of the case by her county attorney.
We therefore conclude that you, as county attorney, must file the appeal to circuit court if the complainant wants you to do it.