Request By:
Mr. A. Jack May
Director, Division of Legal Services
Commonwealth of Kentucky
Department of Justice, Bureau of Training
Stratton 354, Eastern Kentucky University
Richmond, Ky 40475
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in response to your recent inquiry as to whether a criminal summons in included within KRS 431.420 which requires warrants issued by district courts for an offense committed within a city be served by the city police if service is to be made within the city boundaries.
A criminal summons does not fall within the more restrictive requirements of this statute. The summons, an official process issued by a court officer in lieu of an arrest warrant, follows the same formal requirement as does the warrant under RCr 2.06 and 6.54 except that the summons commands the defendant to appear in court at a certain time and place rather than requiring the peace officer to take the defendant into custody or to conduct a search, as does a warrant. The nature and purpose of a summons, then, is different from the warrant.
KRS 431.420 which expressly states that any warrant issued falling within its provisions is to be served by the city police makes no mention of a criminal summons. In RCr 2.10 (2), provision is made for the service of a summons, permitting service by any peace officer and authorizing either personal service, leaving it at defendant's home with a suitable person, or service on an agent of a corporate defendant. Thus, the criminal rules regulate the service of a summons and there is no apparent conflict with the statute.
A recent opinion of the Attorney General (OAG 78-403) offered a similarly restrictive interpretation of KRS 431.420 (cited as H.B. 304), stating that:
"Under H.B. 304, Section 2, if a warrant is issued by a district court for an offense committed in a city, then the warrant would have to be served by the police department of the city if the warrant is to be served within the city limits. If the district court issues a summons and places it in the hands of the sheriff, then the sheriff will have to serve the summons even though he is found in the city of his residence. Further, if the summons or warrant is issued by the circuit court, and the warrant or summons is directed to the sheriff, then the sheriff will have to serve it, regardless of whether the defendant can be found in a city or within the unincorporated area of the county."
The opinion points out that as a general rule, under KRS 70.070, the sheriff is required to serve warrants and summons coming to him by the issuing authorities, and that KRS 431.420 creates an exception to this rule.
To summarize, the nature and purpose of the summons differs from that of the warrant. The criminal rules have made separate provision for the summons, and the language of KRS 431.420 makes no apparent attempt to alter these rules. Summons may be served by any peace officer.