Request By:
Mr. James W. Gardner
Attorney at Law
Central Kentucky Legal Services, Inc.
800 Lexington Building
201 W. Short Street
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question, on which you request our opinion, reads:
"Does Section 113(5) of the Kentucky Constitution, KRS 24A.100 and Rule 5.030 of the Rules of the Supreme Court permit a non-lawyer trial commissioner to conduct the trial at a forcible entry and detainer and actually render a judgment on the matter?"
Section 113(5) of the Kentucky Constitution permits a non-lawyer to serve as a trial commissioner in a county in which no district judge resides and no qualified attorney is available. Other trial commissioners with like qualifications may be appointed by the chief judge in any judicial district upon certification of the necessity therefor by the Supreme Court. All trial commissioners shall have the power to perform such duties of the district court as may be prescribed by the Supreme Court (Kentucky). See also KRS 24A.100(2) and SCR 5.020.
Under SCR 5.030, "subject to review" by the chief district judge or by another judge of the district designated for that purpose by the chief judge, a trial commissioner has the authority of a district judge, unless otherwise specified in the certificate of necessity authorizing his employment, inter alia, to issue writs of forcible entry and detainer and warrants of restitution.
The writ of forcible entry and detainer, which may be issued by a trial commissioner, is simply the "warrant" issued in district court upon a complaint that a forcible entry or detainer has come into existence. The writ is usually directed to the sheriff of the county, commanding him to summon a jury (if demanded) and give the defendants or lessees notice of the trial date. See KRS 383.210.
Upon the trial of the matter by a district judge, the court enters a judgment. If the judgment is for plaintiff, the judgment will provide, inter alia, that plaintiff (landlord) shall have restitution of the premises [these cases usually involve delinquent rentals and failure or refusal of a tenant to vacate the premises]. See KRS 383.240, relating to the judgment of the court rendered by a district judge.
If the plaintiff or landlord wins the suit and the defendants or tenants fail to file an appeal with the court, as permitted by KRS 383.245, the court must issue a warrant of restitution, usually directed to the sheriff of the county, directing him to put the landlord in possession of the property. As we said above, the trial commissioner may issue the warrant of restitution.
In summary, a trial commissioner has the express authority under SCR 5.030 to issue writs of forcible entry and detainer and warrants of restitution, where applicable. The writs he issues are subject to the review of the chief district judge, or by another judge of the district designated for that purpose by the chief judge in the applicable county, prior to the actual issue of the writs.
The question arises as to what such review involves. "Review" is defined in Black's Law Dictionary (4th ed.) p. 1483 as follows: "To re-examine judicially. A reconsideration; second view or examination; revision; consideration for purposes of correction. " See
State v. Elliott, Mo., 387 S.W.2d 489 (1965), citing the law dictionary meaning of "review".
Since the Supreme Court Rules do not define "review", we believe the law dictionary definition above can be used as a guideline. Under these circumstances we believe the reviewing judge would examine the writ of forcible entry or detainer and the warrant of restitution to be issued by a trial commissioner for possible correction by the judge prior to the actual issuing of the writs. Where the judge believes the writs are legally sufficient, the judge would merely approve or endorse the writs.
It is our opinion that under the literal language of SCR 5.030, the trial commissioner does not have the authority to conduct forcible entry and detainer trials, and does not have the authority to issue judgments in such cases. The court has said that it is bound by a legislative intent clearly evidenced by the plain and precise words used in the enactment and the plain and fair meaning of the language used.