Request By:
Mr. Don R. Evans
Supervisor
County Fee Systems
Executive Department for Finance and Administration
Capitol Annex
Frankfort, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Campbell Circuit Court Clerk's office has a deficit of $6,529.56 in his operating (75%) account. That is a county of 75,000 or more population; and the law required (until January 2, 1978) the fees of the circuit clerk to be turned into the state treasury, and the salaries and official expenses of the clerk were paid out of the 75% account (75% of the total fees paid into the treasury) . The deficit was covered by expenditures, to that office, out of the state treasury (specifically out of a trust and agency fund account no. 14, embracing the county fees paid into the state treasury under KRS 64.345 and fees paid in through various state agencies).
Your specific question: Is this deficit amount a responsibility of the Commonwealth or of the Campbell County Fiscal Court?
Prior to the advent of the district court system on January 2, 1978, the circuit clerks in Kentucky were fee officers. However, KRS 64.055 was enacted in the 1976 Extraordinary Session (Ch. 21, § 19) providing for paying salaries of the clerks out of the state treasury, effective January 2, 1978. See also KRS 30A.190, effective January 2, 1978, requiring all fees in any district or circuit court to be paid into the state treasury.
In counties having a population of 75,000 or more, prior to the 1976 amendment (Ex. Sess., Ch. 14, § § § 33, 34, and 35), the circuit clerks, under KRS 64.345, were required to turn in all of their fees to the state treasury through the Department of Finance. Seventy-five percent (75%) of the total fees, as we have said, were used by the state to pay the official salaries of that office and office expenses. The remaining twenty-five percent (25%), under KRS 64.350, went to the fiscal courts and urban county government (Fayette). However, in the 1976 amendment (Ex. Sess., Ch. 14, § § § 33, 34, and 35) the circuit clerks were removed from KRS 64.345, 64.350 and 64.355, effective January 2, 1978.
Under KRS 64.345(4), prior to the amendment mentioned above, if the 75% account during a particular month was not sufficient to fund completely the official salaries and expenses of the circuit clerk's office, the deficit could be made up out of the 75% account in any subsequent month or months, provided that no such deficit could be carried forward beyond the term of the particular circuit clerk.
Under § 97 of the Kentucky Constitution the regular term of a circuit clerk is for a six year period. Thus the term of the clerk began in 1976 and continues through 1981. By legislative action, however, this system of funding that office under the 75% account law was changed, effective January 2, 1978. Thus instead of having a six year period [the regular length of the term] within which to rely upon the 75% account's finally funding any deficit in that officer's account in Campbell County, the number of term years during which such deficit could be made up was, by the legislative action, reduced to two years, 1976 and 1977.
KRS 64.350, prior to January 2, 1978, provided that any excess remaining in the 75% account at the end of the officer's term will be paid by the state treasurer to the applicable fiscal court or urban county government. This concept is clearly expressed in KRS 64.355, which declared that it was the intent of the General Assembly that all fees of certain offices (including the circuit clerk until January 2, 1978) in counties of a population of 75,000 or more paid into the state treasury pursuant to § 106 of the Kentucky Constitution "are the property of the respective county." (Emphasis added).
We have been informed by the Division of Accounts of the Finance Department that beginning with January 2, 1978, and in reliance upon the 1976 amendment of KRS 64.345, 64.350 and 64.355 [which eliminated the circuit clerks from the 75% account funding device], the 75% account device as applied to circuit clerks has been completely ignored and eliminated from its accounting system as a deliberately observed principle.
Section 106 of the Kentucky Constitution reads:
"The fees of county officers shall be regulated by law. In counties or cities having a population of seventy-five thousand or more, the Clerks of the respective Courts thereof (except the Clerk of the City Court), the Marshals, the Sheriffs and the Jailers, shall be paid out of the State Treasury, by salary to be fixed by law, the salaries of said officers and of their deputies and necessary office expenses not to exceed seventy-five per centum of the fees collected by said officers, respectively, and paid into the Treasury. " (Emphasis added).
Although § 106 was not expressly repealed by the Judicial Amendment, it is our opinion that the circuit clerks as listed in that section are no longer, as of January 2, 1978, under the operative provisions of that section. The circuit clerks are state officers and are an integral part of the State Court of Justice. Certain fees generated through the clerks' services are paid into the state treasury, and those fees go into the State General Fund. The clerks' compensation and office expenses are paid out of a specific appropriation of the judiciary in the state budget. Thus the clerk expenditures are in no way related to the receipts generated by the clerks.
In the old system (prior to January 2, 1978), the clerk fees came into a trust and agency account of the state treasury, and the clerk's compensation and expenses were paid out of that precise account through the Department of Finance.
Thus the clerk compensation regulation mandate of § 106, Constitution, no longer applies (as of January 2, 1978).
This view is buttressed by the fact that the state judiciary is a unified system. See § 110(5)(b), Constitution, relating to the budget for the Court of Justice. Section 114 includes the circuit clerks as a part of the judicial system. Section 120 provides in part that all compensation and necessary expenses of the Court of Justice shall be paid out of the state treasury. Then significantly, § 124, Constitution, provides that "any remaining sections of the Constitution of Kentucky as it existed prior to the effective date of this amendment which are in conflict with the provisions of amended sections 110 through 125 are repealed to the extent of the conflict. . . ." (Emphasis added). It is our view that § 106, as relates to the circuit clerk, is in conflict with the new system envisioned by the new judicial articles mentioned above.
In
Hatcher v. Meredith, 295 Ky. 194, 173 S.W.2d 665 (1943) 668, the court wrote this:
"Even though it may be said that the effect of the amendment will be to suspend, temporarily, sections 235 and 161 of the Constitution, this does not mean that more than one subject is embraced. The fact that an amendment impliedly repeals sections not mentioned therein does not thereby render it unconstitutional."
Further.
Mitchell v. Knox County Fiscal Court, 165 Ky. 543, 177 S.W. 279, 282, held that an amendment to the constitution impliedly modifies any existing section thereof with which it is in conflict. Under that doctrine § 124, containing the express statement of the principle of modification, is not even necessary for the application of the doctrine. Thus the court held that § 157a, an amendment, "necessarily annuls any and all former provisions of that instrument which conflict with it . . . ." (Emphasis added).
Concerning the deficit of $6,529.56, we believe that fairness and equity dictate that the state should make it up out of general fund surplus, the reason being that the legislature (by its act of amendment in the 1976 extraordinary session in eliminating circuit clerks from the 75% account device) and the Department of Finance in administering the amended legislation changed the system and made it impossible for the deficit to be made up during the normal six year term. To the contrary, the state cut off such possibility after two years of the term had elapsed.
It is true that under the law before January 2, 1978, the fees of the circuit clerk were considered to be property of the county. KRS 64.355. Under KRS 64.350, prior to January 2, 1978, any excess remaining in the 75% account went to the county. The old system suggests that the county, having the benefit of an excess should have the burden of a deficit. The fallacy in that view now is simply that as of January 2, 1978, the circuit clerk became an officer in the state judiciary system. Moreover, under present law all fees generated by the circuit clerk and collected and paid into the state treasury on and after January 2, 1978, are property of the state. Under the new system the state has taken over the responsibility for funding the circuit clerk's office. Thus the reasoning that the state should pay the deficit is wholly consistent with the legislation implementing the new judicial system. Any deficit arising out of this dramatic change of funding should be paid by the state.
For reasons given above, we conclude that: (1) Section 106, Constitution, as of January 2, 1978, no longer applies to circuit clerks; (2) The deficit of the Campbell Circuit Clerk should be funded by the state out of general fund surplus.