Request By:
Mr. Charles Roberts
Nelson County Judge/Executive
Courthouse
Bardstown, Kentucky 40004
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question reads:
"Will you advise if, in your opinion, a county judge/executive has the authority to fine or charge a person for contempt of court while presiding at a fiscal court meeting."
KRS 67.040(2) provides in part that "the county judge, or the county judge pro tem or justice presiding in his place, shall preserve order, and may fine and imprison for contempt of court in the same manner as the presiding judge of the county court."
Under the constitutional amendment relating to the judiciary, the county judge was divested of his judicial functions. See § 109, Kentucky Constitution, It is our opinion that imposing a fine and imprisonment on a person is strictly a judicial function.
Casteel v. Sparks, 312 Ky. 99, 226 S.W.2d 533 (1950) 536; and
Young v. Knight, Ky., 329 S.W.2d 195 (1959) 199.
Since § 28 of the Kentucky Constitution mandates that no strictly judicial function can be vested in a person who is not a judicial officer [judge] or a governmental body which is not a court, it is our opinion that the application of the contempt power provisions of KRS 67.040(2), relating to the county judge/executive or pro tem or justice presiding in his place, would be unconstitutional. The county judge/executive, his pro tem, and justice of the peace are not judicial officers. The fiscal court is not a judicial body. See § 109, Kentucky Constitution. It, in fact and in law, is only an administrative and legislative body. Fiscal
Court, etc. v. City of Louisville, Ky., 559 S.W.2d 478 (1977). It may act in a quasi-judicial [but not judicial] capacity, but it is not a judicial body.
Newell v. Cincinnati, N.O. & T.P. Ry. Co., 246 Ky. 628, 55 S.W.2d 662 (1933).
In
Lynch v. Johnson (C.C.A. -6, 1970) 420 F.2d 818, the county judge, in invoking KRS 67.040(2), had a member of fiscal court removed from the meeting room and placed in jail. In the suit filed by the jailed member under the Civil Rights Act the county judge claimed judicial immunity. However, the Sixth Circuit Court of Appeals ruled that the defense of judicial immunity did not afford any protection to a "judge acting in clear absence of jurisdiction. * * * nor does it protect him in non-judicial activities." Lynch, above, p. 820. The court said in effect that a county judge does not bring judicial immunity to a nonjudicial body such as a P.T.A. meeting or a fiscal court. The court in Lynch went on to point out that a Kentucky fiscal court is not a judicial tribunal. Its powers are entirely legislative and administrative, the court citing KRS 67.080;
Commonwealth v. Kenneday, 118 Ky. 618, 82 S.W. 237 (1904); and Ex parte Rowland, 104 U.S. 604, 613, 26 L. Ed. 861 (1881). We conclude that the county judge/executive has no valid authority to fine and imprison a person for contempt in connection with a fiscal court meeting.
You next ask under what circumstances can the presiding officer of fiscal court keep order?
The chairman of the fiscal court meeting, when a member or nonmember interferes with the orderly progression of the meeting, can ask him to leave the meeting room or hall; and, if the offending person does not leave, the chairman can get him removed by calling on the sheriff's office or county or city police. Robert's Rules of Order Newly Revised, § 60, p.p. 542-543. Such peace officers should use only that force necessary to remove the offender from the meeting hall or room. The disrupting of a meeting is a class B misdemeanor. KRS 525.150. For a class B misdemeanor the convicted person can be fined not to exceed $250 and imprisoned in jail not to exceed ninety (90) days. KRS 534.040(2)(b) and 532.090(2).