Request By:
Mr. Robert O. Miller
Calloway County Judge/Executive
Murray, Kentucky 42071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request a formal opinion on two questions relating to the county judge/executive.
Question No. 1:
"Can a county judge/executive perform marriages? "
KRS 402.050(1)(b) was amended by the 1976 Acts (Ex. Sess.), Ch. 14, § 401, to provide in part that "marriage shall be solemnized only by: judges of the circuit court, judges of the county court, judges of the district court and such justices of the peace as the governor or the county court authorizes;" (Emphasis added).
It is our opinion that county judge/executives are authorized by KRS 402.050 to solemnize marriages. In the amendment the legislature knew about the judicial constitutional amendment and that as of January 2, 1978, the county judge was stripped of his judicial functions. They deliberately left the term "judges of the county court" in the statute. See Acts of 1976 (Ex. Sess.), Ch. 20, § 6, providing that "county judge/executive" will be substituted for words "county judge" appearing in previously enacted statutes. Secondly, the solemnizing of marriages is a nonjudicial function, and thus no constitutional problem is involved. See §§ 27-29, Kentucky Constitution.
Question No. 2:
"Can a county judge/executive appoint a county judge/executive pro-tem and if so, and the answer is yes, would the county judge/executive pro-tem have the same powers as the county judge/executive during his incapacitation or absence?"
Under KRS 67.710(8), the fiscal court may enact an ordinance creating a county judge/executive pro tem position. The pro tem would serve as county judge/executive when the latter is ill, out of the county or state or is otherwise incapacitated to carry out his statutory duties. The county judge/executive would appoint such pro tem [after the position is created], with the approval of fiscal court.
KRS 67.735 involves the appointment of a pro tem as relates to national or state emergency as described in KRS 67.730 and 67.735.