Request By:
Hon. James W. Lyon, Sr.
District Judge
Twentieth Judicial District
Greenup, Kentucky 41144
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion on the following questions relating to the appointment of a trial commissioner.
Question No. 1:
"Can the Trial Commissioner of the Lewis County District Court personally appear in criminal matters before the Greenup County District Court?"
There are two lawyers, who represent defendants in criminal cases, who want to be considered for that post.
KRS 24A.100 reads:
"(1) In any county which does not have a district judge resident in the county there shall be a trial commissioner.
"(2) Trial Commissioners shall be appointed in the manner required by section 113 of the Constitution of Kentucky and shall perform such duties as may be directed by the Supreme Court.
"(3) Trial commissioners in district court shall be compensated as provided in the judicial personnel system, provided, however that no trial commissioner shall be compensated at a rate greater than seven thousand two hundred dollar ($7,200) per year."
Section 113(5) of the Kentucky Constitution provides:
"(5) In any county in which no district judge resides the chief judge of the district shall appoint a trial commissioner who shall be a resident of such county and who shall be an attorney if one is qualified and 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 power to perform such duties of the district court as may be prescribed by the Supreme Court."
A trial commissioner, under Supreme Court Rule 5.030(a), has the authority in criminal cases to issue search warrants and warrants of arrest. He has the authority to examine any charge and commit the defendant to jail or hold him to bail or other form of pretrial release. He has the authority to accept a plea of guilty, at the time the charge is examined, and impose sentence for any offense punishable only by fine of $500 or less.
Under SCR 5.030(b) the trial commissioner, in juvenile cases, has the authority to hear and determine if children in custody should be held in detention. He has the power to conduct preliminary inquiries, informally adjust juvenile cases, and cause juvenile petitions to be brought; to order physical and mental examinations of children before the juvenile court; and to issue orders for the temporary custody of children whose welfare is threatened under emergency conditions.
There are two kinds of incompatibility between offices. The first is a constitutional or statutory incompatibility. "The second is a common law or functional incompatibility, which is declared by courts without the aid of specific constitutional or statutory prohibition when the two offices are inherently inconsistent or repugnant, or when the occupancy of the two offices is detrimental to the public interest." Adams v. Commonwealth, Ky., 268 S.W.2d 930 (1954) 931.
It is our opinion that the trial commissioner of the Lewis County District Court cannot personally appear as an attorney representing a defendant in a criminal case before the District Court in Lewis County, or the District Court in Greenup County, in view of the inherently inconsistent or repugnant incompatibility of the two roles (i.e., being a trial commissioner with a judicial role on one hand, and a defending attorney on the other hand in criminal cases.
Question No. 2:
"Can the Trial Commissioner of one District Court personally appear in criminal matters before another District Court within the same judicial district? "
In our opinion the answer is "no", for the reason given under Question No. 1.
Under the foregoing analysis and conclusion, it is moot to consider KRS 61.080 and § 165, Kentucky Constitution, relating to incompatible offices.
So far we have dealt strictly with general statutory and common law incompatibility of offices.
We note that in the April, 1981, issue (Vol. 45 No. 2) of the Kentucky Bench and Bar, page 15, Judicial Ethics Opinion JE-17 (tormal), the Kentucky Bar Association concluded, on the general question as to whether a trial commissioner could represent clients in litigation against the Commonwealth, that the answer is "yes", subject to the limitations of SCR 5.060. Under SCR 5.060, a trial commissioner shall not personally engage in the practice of criminal law in the district court of the district in which he serves as commissioner and shall not act as an attorney in any other matter in which he has taken any action as a trial commissioner. The ethics opinion held that by placing certain limitations on the practice of law by trial commissioners, the Kentucky Supreme Court impliedly placed its stamp of approval on all other types of practice. For that reason, the Bar opinion held that a trial commissioner may represent parties who are engaged in litigation against the Commonwealth, unless he has taken some action in the matter as commissioner, and except that SCR 5.060 prohibits a trial commissioner from engaging in criminal law cases in the district court in which he serves.
If you, or the two attorneys you mention, have any further question about the ethical aspects of this matter, we suggest you take it up with the Kentucky Bar Association pursuant to SCR 3.530.