Request By:
Hon. R. Scott Madden
Clay County Attorney
Courthouse
Manchester, Kentucky 40962
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Asst. Deputy Attorney General
You have written us that "The impotency of our juvenile system at the present time seems to be adding to the exploding problems of juvenile offenders in our area." Discussions with the Court, the Department for Human Resources, citizens, parents and other interested persons have led to your letter.
You raise the following question concerning a work-release program for juveniles:
"What liability, if any, would attach to Clay County, its county officials, the Court, prosecutorial staff and office, and other involved parties, in the event the Court begin imposing, according to a set schedule, public service, work-release type sentences upon status and/or delinquent offenders who come before and are disposed of by the Juvenile Court? The types of work alternatives to detention, foster home placement, and other dispositions, that have been discussed include washing windows, mopping floors and other types of maintenance work in the Courthouse, jail, municipal building and city hall, municipal park and grounds.
The schedule would reflect 2-4 hours work for the first offenders, increased hours for second and third offenders charged with truency, delinguency of various types, and other minor offenses. We would anticipate express, written parental approval before any juvenile would be deferred into this type of disposition. Sincere effort would be made to minimize exposure to risk."
KRS 439.179 provides for work-release activities, but that applies to any person sentenced to jail for a misdemeanor. Here you are speaking only of cases disposed of by the Juvenile Court, but are not transferred for trial by the Circuit Court.
Under KRS 208.200(4), if a child sixteen (16) years of age or older has been adjudicated delinquent in the commission of an offense classified as a misdemeanor or violation, the Court in its discretion may order as follows:
"(a) Participation in a community services work program. The work program shall be of a constructive nature designed to promote the rehabilitation of the child. The program shall be appropriate to the age level and physical ability of the child and shall be combined with counseling from a probation officer or other responsible person. The work program shall not be scheduled during such times that would interfere with educational, occupational, or religious obligations of the child. Assignment to a community services work program shall be made to a governmental or nonprofit community organization for a specified period of time, not to exceed one hundred and twenty (120) hours for a child adjudicated delinquent in the commission of a Class A misdemeanor, not to exceed eighty (80) hours for a child adjudicated delinquent in the commission of a Class B misdemeanor, and not to exceed forty (40) hours for a child adjudicated delinquent in the commission of an offense classified as a violation under the penal code. A child may be directed to participate in a community services work program as provided in this subsection for the purposes of restitution authorized by KRS 208.240."
Thus the only work program for juveniles in dispositional cases under the present law is found in KRS 208.200(4)(a), as set out above. KRS 208.200, however, is repealed, effective July 1, 1982. Juvenile legislation collected under KRS Chapters 208A to 208G will become effective July 1, 1982. See the companion statute, KRS 208E.120, effective July 1, 1982, regarding a community services work program for juveniles fourteen (14) years of age or older, who have been adjudicated delinquent.
See OAG 75-583, copy enclosed, in which this office concluded that under existing statutory law a juvenile judge generally could not order a juvenile, who has been found to have committed a public offense, to participate in some type of public service work. However, after that opinion was issued, the present KRS 208.200(4), relating to a juvenile's participation in a community services work program, was added to that statute in 1976 (1976 Acts, Ch. 168, § 8).
In connection with all public officials dealing with juvenile cases disposed of by the Juvenile Court, such officers must be careful in acting, as concerns juveniles brought within their ambit of duties in some manner, only in the ways and manner expressly provided by law or clearly implied therefrom. If such official exceeds or ignores such statutory limits, he must respond to the party injured like any other wrongdoer. See Cottongim v. Stewart, 283 Ky. 615, 142 S.W.2d 171 (1940) 177.
"It is well settled that, while a judicial officer will be protected against suits for damages resulting from an erroneous exercise of judgment or power, yet where he acts corruptly, maliciously, or beyond his jurisdiction, his office is no protection." Reed v. Taylor, Ky., 78 S.W. 892 (1904). While the defense of judicial immunity is broad, it does not afford any protection to a judge acting in clear absence of jurisdiction. Lynch v. Johnson (U.S.C.A. -6, 1970) 420 F.2d 818, 820.
However, in Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967), the Supreme Court of the United States pointed out that "Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction. . . . This immunity applies even when the judge is accused of acting maliciously and corruptly. . . ." The Court went on to say that the rule is for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.
Thus in Kentucky the rule is that the judge is not liable for any injuries resulting from acts within his jurisdiction, and "jurisdiction" is construed broadly so that a judge will not be held liable unless he acts without color of authority. Apton v. Wilson, (U.S.C.A., Dist. of Columbia Circuit - 1974) 506 F.2d 83, 90. Thus the conservative practice would be that the District Court should not authorize work programs for juveniles except where explicitly authorized under KRS 208.200(4)(a). In that manner there can be no question about his acting within his jurisdictional lines. See 48 C.J.S., Judges, § 63, pp. 1029-1030.