Request By:
Mr. James S. Secrest
Allen County Attorney
210 West Main Street
Scottsville, Kentucky 42164
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You ask for our opinion on the question as to whether or not the circuit clerk can issue a search warrant in the absence from the county of all circuit and district judges and the trial commissioners.
RCr 13.10 provides that a search warrant may be issued, upon affidavit sufficient under § 10 of the Kentucky Constitution and sworn to before the issuing officer, by a magistrate, "or by any other officer authorized by statute." (Emphasis added). A magistrate is a judge of the circuit or district court or a trial commissioner. RCr 1.06(a). Prior to the 1978 Session of the legislature, KRS 15.725(4) provided that in the absence from a county of all district judges and all circuit judges and all trial commissioners, the circuit clerk in each county could, with the approval of the commonwealth attorney or county attorney, issue arrest warrants. However, in the 1978 Session, H.B. 49 was enacted, which amends KRS 15. enacted, which amends KRS 15.725(4) by providing that in the event of the absence from a county of all district judges and all circuit judges and all trial commissioners, the circuit clerk in each county may issue "criminal warrants" prepared by the commonwealth attorney or county attorney, who shall certify that there is no district judge, circuit judge, or trial commissioner within the county. (Emphasis added). The phrase "issue arrest warrants" was deleted. H.B. 59 becomes effective on June 17, 1978.
A search warrant is a criminal warrant. See § 10, Kentucky Constitution; Amendments 4 and 14 of the United States Constitution; and Berkshire v. Commonwealth, Ky., 471 S.W.2d 695 (1971) 697. See definition of "search warrant" Black's Law Dictionary (4th ed.) page 1518. The 1978 amendment to KRS 15.725 clearly provides that the circuit clerk, under the above described conditions, may issue criminal warrants. It is our opinion that the term "criminal warrants" clearly embraces search warrants. H.B. 49 is couched in clear and unambiguous language. When language is clear and unambiguous, the courts have said that such language will be held to mean what it plainly expresses. Hawley Coal Co. v. Bruce, 252 Ky. 455, 67 S.W.2d 703 (1934) 705.
In summary, on and after June 17, 1978, in the event of the absence from a county of all district judges and all circuit judges and all trial commissioners, the circuit clerk in any county in Kentucky may issue not only arrest warrants but may issue search warrants as well, provided that such warrants are prepared by the commonwealth attorney or county attorney, who shall certify, before such warrants are issued, that there is no district judge, circuit judge, or trial commissioner within the county.
Some inquiring soul may ask: When would all the judges and trial commissioners be absent from a county? Just recently all the judges and trial commissioners were absent from several counties in Kentucky when they were attending a meeting, relating to the judicial system, in Owensboro. So it can happen, and it will happen in the future. The legislature has thus made provisions for such contingency by establishing the important function of issuing criminal warrants in the circuit clerk under those unusual circumstances.