Request By:
Mr. David Patrick
Mercer County Attorney
Courthouse
Harrodsburg, Kentucky 40330
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your questions relate to KRS 441.030, which statute reads:
"If in any county there is no jail, or the jail is insecure, or there is danger or probable danger that any or all of the persons confined in the jail under any order or process of the circuit court, or held to answer any charge in the circuit court, will be removed from the jail by violence, the circuit judge shall, by an order made of record, direct that any or all of such persons be transforred to the jail of the nearest county in which the jail is secure and they can be safely kept. When any such order is made, and a copy thereof is furnished to the jailer of the county designated, he shall receive all such prisoners. If the circuit judge is not in the county, the order of transfer may be made by the district judge, who shall deliver the order, or a copy thereof, to the circuit clerk for revision by the circuit court."
In your county neither the district nor circuit judge resides in your county.
Question No. 1:
"Does KRS 441.030 vest the exclusive authority for the transfer of prisoners both circuit and district in the Circuit Judge or should 441.030 be interpreted that each judge, that is circuit and district or trial commissioner, have authority to move prisoners under their jurisdiction?"
Under the literal language of the statute, the transfer of prisoners from one county jail to another for security purposes or where there is no county jail relates exclusively to prisoners under the jurisdiction of the circuit court. Conversely, it cannot be used as a vehicle for the transfer of district court prisoners. See Foster v. Commonwealth, Ky., 348 S.W.2d 759 (1961) 760. Unfortunately, in this era of closing and inadequate jails, there is no statute dealing with the transfer of district court prisoners to some other county jail.
As it presently stands, a district court judge plagued with the security or "no jail" problem, will have to order the prisoners under his jurisdiction to some adjoining county jail where the reception of such prisoners is worked out in the adjoining county, and through the cooperation with the local fiscal court. See KRS 24A.110 and 71.040. Also note that the fiscal court in each county is responsible for maintaining a county jail pursuant to KRS 67.080 and 67.083, or sharing in the maintenance cost of a county jail of another county. The district court's criminal jurisdiction [KRS 24A.110] inherently gives him the authority to see to it that prisoners under his jurisdiction and requiring incarceration are placed in a suitable county jail.
Where the circuit judge is not in the county, the order of transfer may be made by the district judge, subject to the further orders of the circuit court.
We want to make it clear that whether the circuit or district judge resides in the county is not of importance in the application of the statute. The effect of the statute depends strictly on the jurisdictional authority as outlined above and the judge's availability in the county to enter the order of transfer.
Question No. 2:
"In addition, I would like to ask your opinion as to whether or not the circuit judge can prohibit a district judge or trial commissioner from exercising any authority under this statute."
The answer is "yes", except where the district judge is "filling in" for the absent circuit judge. We are speaking of applying the statute involving circuit court prisoners. Where district court prisoners are being transferred, the statute has no application.
As relates to the trial commissioner's filling in for the district judge under KRS 441.030 [filling in ultimately for the circuit court in connection with a transfer order], trial commissioners shall perform only such duties as may be directed by the Supreme Court of Kentucky. See KRS 24A.100(2) and Section 113(5), Kentucky Constitution. We have examined SCR 5.030, relating to the powers of a trial commissioner, and we find no authority for a trial commissioner's filling in on the order of transfer where both the circuit and district judges are not in the county.