Request By:
Mr. Carmol D. Cook
Cook, Hagan & Bolt
25 Fleener Building
P.O. Box 87
Hartford, Kentucky 42347
Opinion
Opinion By: Robert F. Stephens, Attorney General; Elizabeth E. Blackford, Assistant Attorney General
You have written to ask whether a sheriff may charge a flat fee of $4.00 for serving papers or process regardless of where in the county the paper or process is to be served. He may not. Pursuant to KRS 64.095 the sheriff is to be paid for the miles he travels in order to deliver notices, subpoenas or summonses at the rate per mile paid state employees for official travel in privately owned vehicles. In addition, KRS 23A.200(5)(b) and 24A.170(5)(b) provide that the sheriff shall receive a fee for service of process which shall be calculated by the miles traveled in a serving process at the rate applicable to state employees. Currently, that rate is $ .16 per mile. Obviously, the flat $4.00 fee is illegal. The sheriff must compute his mileage per service of process and charge the responsible party at the rate of $ .16 per mile traveled.
You have also asked what is the proper fee for service of (1) a summons, (2) a complaint, and (3) some other process such as a temporary restraining order. Currently, the sheriff is demanding a $3.00 fee for service of each of these documents in civil cases. Consequently, if he were to serve a summons and a complaint he would charge a $6.00 fee, or if he were to serve all three documents (in one trip) he would charge $9.00. The problem arises over the interpretation of the meaning of the word "process" for KRS 24A.170(5)(a) and KRS 24A.200(5)(a) permit the sheriff to collect a $3.00 fee "per process".
The word "process" as used in KRS 23A.200 and 24A.170 does not refer to every legal document. The term "process" is a technical term which refers to documents, such as summonses, by which the Court may command a person to appear in an action or before the Court, or the means, such as a temporary restraining order, whereby the Court compels compliance with its demands. It includes all writs or orders issued by the Court whereby its judgments are carried into effect. 72 CJS; Process § 1. It does not refer to complaints or other pleadings of the parties, for these pleadings have none of the "action compelling" significance which is a characteristic of process. Id. Therefore, the sheriff should not charge an additional $3.00 for the complaint. The proper fee is $3.00 where the sheriff serves a complaint and summons together (as is required by CR 4.04).
Because the temporary restraining order is a process, a means of compelling compliance with the Court's command, the sheriff may charge an additional $3.00 for service of the temporary restraining order regardless of the fact that it is served at the same time as the complaint and summons. Therefore, the correct fee for service of a summons, complaint and temporary restraining order is $6.00.
In determining the correct fee, the sheriff may be guided by whether or not the item he is serving requires a return. All forms of process require a return. See, for example, CR 65.03(4); CR 4.01(1)(a). If the sheriff must make a return on the item or document, he is entitled to a $3.00 fee for service, regardless of whether the process is served alone or in a group with other process. Conversely, if no return is required on the document (i.e., a pleading) he may not charge the $3.00 fee.