Request By:
Mr. Alan E. Sears
Assistant Corporation Counsel
Department of Law
City of Ashland
Ashland, Kentucky 41101
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The City of Ashland for a number of years has contributed $5,000.00 annually to the Boyd County Fiscal Court for the operation of the Boyd County Public Defender's Office. During the time that these contributions were being made the City of Ashland had an active Police Court in which a Public Defender served from time to time.
As of January 1, 1978 the Ashland City Police Court was abolished and all courts for the County of Boyd were established at the county seat in Catlettsburg. At the present time no district or circuit court sits in the City of Ashland.
KRS 31.160 provides that the fiscal court of each county may elect to maintain a public defender and may make certain elections regarding the funding of that office. KRS 31.160 Section 3 states in part "the Fiscal Court of a County may join with cities within said County" to establish and maintain a joint office of District Public Defender.
KRS 31.190 Section 1 states "the Fiscal Court of each County together with any cities involved shall annually appropriate enough money to administer the program of representation that it has elected under KRS 31.160."
Your question reads:
"Does the City of Ashland have any obligation under the above cited statutes or any other relevant statutes to provide funding for the Boyd County Public Defender's Office? If the City does have an obligation to provide funding for the Public Defender's Office is there any statutory or other requirements as to the amount of the contribution?"
In reading KRS 31.160 and 31.190 together, it is our view that the county is primarily responsible for funding any public defender program it elects. It is further our opinion that a city's participation in the funding of a public defender program is not mandatory; however, where it enters into an agreement with the fiscal court to assist with the financing of such programs, the city should live up to its agreement.
The answer to your question is that the City of Ashland has no specific obligation under KRS Chapter 31 to provide funding for the Boyd County Public Defender's Office. However, the city should live up to its written agreement to assist in such funding during the effective agreement period.
There are no statutory or other requirements as to the precise amount of the city's contribution, once the city elects to join in the funding of a public defender program under KRS 31.160(2).
We might point out that the city has a general responsibility for caring for its indigents under KRS 84.210(7) and 84.260(2). Likewise a county has a general responsibility for caring for its poor under KRS 67.080(8) and 204.010. The fact that the taxpayers of the City of Ashland, in connection with this joint funding operation, may be sharing a "double burden" is not significant, in view of the fact that the Court of Appeals held in two cases that while the county has the primary responsibility for caring for its paupers, who reside in the county, a city has a similar responsibility for its poor who reside within the corporate limits. See City of Richmond v. Madison County Fiscal Court, 290 Ky. 293, 161 S.W.2d 58 (1942); and City of Paducah v. McCracken County, 305 Ky. 539, 204 S.W.2d 942 (1947). In addition, where the city is contributing toward the public defender system, there is no "double taxation. " To constitute double taxation the two taxes must be imposed on the same property by the same governing body during the same taxing period for the same taxing purpose. Second Street Prop. v. Fiscal Court of Jefferson County, Ky., 445 S.W.2d 709 (1969). At the most, where the city is assisting in funding the public defender program of the county, there may be a "double burden" in some sense, but not double taxation. However, the double burden argument was overriden by the Court of Appeals in the above two cases, since the court held that a city as well as the county has a responsibility to care for the poor within its boundaries.