Request By:
Mr. Homer F. Marcum
Editor & Publisher
The Martin Countian
Inez, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your newspaper, "The Martin Countian", under your by line contains a news story in which it was stated that Circuit Judge W.B. Hazelrigg appointed, in Martin Circuit Court, three new jury commissioners last week. The article cites KRS 29A.030(2), which provides that:
"Each jury commissioner shall be a citizen of the United States, eighteen (18) years of age or older and a resident of the county, and shall not be a party to any action pending in the court of justice, nor shall he hold any other public office or office in a political party. " (Emphasis added).
One of the commissioners has two cases pending in Martin Circuit Court. In fact, you say, that commissioner was sitting at his counsel's table when the judge called a recess and swore him in as a jury commissioner.
Another of the jury commissioners is a member of the local Board of Education. The third commissioner is a precinct captain in the Republican party.
You ask whether all three jury commissioners are in violation of the law.
KRS 29A.990(2) reads:
* * *
"(2) Any wilful 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. "
Subsection (2), KRS 29A.990, above, was § 45 in the Extraordinary Session of 1976 (H.B. 23, Ch. 22). Under Section 79 of the same bill, Section 45 (KRS 29A.990(2)) becomes effective on January 2, 1978.
From the facts given, it is our opinion that KRS 29A.030 has been violated as relates to all three jury commissioners. However, there can be no misdemeanor prosecution under the penalty statute, KRS 29A.990(2), since that statute becomes effective on January 2, 1978.
Under KRS 522.030, the jury commissioners and a circuit judge who allegedly violates KRS 29A.030(2) could subject themselves to a Class B misdemeanor charge, since that statute provides that a "public servant" is guilty of official misconduct in the second degree when he knowingly violates any statute relating to his office. A Class B misdemeanor carries with it a fine of not more than $250 [KRS 534.040] and a jail sentence of not more than 90 days [KRS 532.090(2)]. See Brickey, Kentucky Criminal Law, § 20.04. A "public servant" includes elected and appointed officials.
You also ask to whom KRS 29A.990(2) applies, when it says that any wilful violation of KRS 29A.030 shall be punishable as a Class A misdemeanor. It would apply to the circuit judge and to the jury commissioners as well. For a Class A misdemeanor the jail term shall not exceed 12 months [KRS 532.090] and a fine not to exceed $500 [KRS 534.040].
The matter of whether any person wilfully or knowingly violates KRS 29A.030 is of such a factual and evidentiary nature that it is properly one for the courts under proper prosecutorial procedure.