Request By:
Mr. Earl C. Brady
516 Plainview Road
Lexington, Kentucky 40502
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You are a justice of the peace-elect in Fayette County.
You ask: What duties, powers, privileges, and responsibilities will remain for you as justice of the peace, beginning January 2, 1978?
As of January 2, 1978, the justice of the peace will no longer have any judicial functions. See § 109, Kentucky Constitution. Most of the statutes relating to the justice of the peace relate to the judicial function of that office.
A justice of the peace can exhume a body in order to determine the cause of death under certain conditions outlined in KRS 72.080.
Grinstead v. Monroe County, 156 Ky. 296, 160 S.W. 1041 (1913) 1042. The compensation of the justice is covered in KRS 72.090.
Under KRS 402.050(1)(b), marriages may be solemnized by such justices of the peace as the Governor or the county judge/executive may authorize. There are no statutory fees for solemnizing a marriage. It is primarily a "free will offering" on the part of the groom. Thus in such marriages, you would be at the mercy of the groom.
The answer to your question, except for the above mentioned statutory roles, is that a justice of the peace in a county not having the magisterial system in 1978 will have virtually no statutory duties or functions. Unfortunately, the office, like that of constables and county surveyors, in the county having the commissioner type of government, will be an empty shell. In 1978 the office of justice of the peace in counties not having the magisterial system will be like an empty house, which, as Samuel Butler described it, is like a "body from which life has departed." See Section 10.05 of the charter of the Lexington-Fayette Urban County Government, relating to justices' courts. It provides that any statutory or constitutional provisions which shall now or hereafter reduce or eliminate the powers, duties, or jurisdictional authority of the justices of the peace shall be implemented forthwith by the merged Government Council. Also section 11.07 of the charter makes it clear that nothing in the charter is intended to alter or affect the election, term, powers, duties, or compensation of a justice of the peace as prescribed by statute or by the constitution. The charter does not add anything to the statutory law.
Thus, in the counties which have adopted the commissioner form of government pursuant to KRS 67.050 and 67.060, including the Lexington-Fayette Urban County Government as concerns the fiscal court [see Section 11.02 of the charter] , your office is virtually barren of duties, powers, and compensation.
The court, in
Johnson v. Commonwealth, 291 Ky. 829, 165 S.W.2d 820 (1942) 829, wrote that a constitutional office may not be stripped of all duties and rights so as to leave it an empty shell, since the legislature cannot directly or indirectly abolish a constitutional office. However, in 1978 the justice of the peace as a constitutional officer is only envisioned by the constitution as a member of fiscal court in those counties choosing the magisterial form of government.
See § § 124 and 144, Kentucky Constitution. Under this reasoning the legislature, in providing an option as to the form of government [magisterial or commissioner] is merely implementing the optional policy expressed in § 144 of the constitution. The legislature cannot be said to have stripped the office so as to reduce it to an empty shell as relates to those counties choosing the commissioner form of government. See OAG 77-133, copy enclosed, of related interest.