Request By:
Mr. Edward G. May
Lincoln County Attorney
Courthouse
Standford, Kentucky 40484
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question is what is the maximum allowable fee per year which the master commissioner can receive?
CR 53.08 limits the compensation of commissioners derived from fees to not more than $24,000 per year (adopted October 24, 1977, effective January 1, 1978).
KRS 31A.010(4) provides that the master commissioner shall be compensated by fees as provided by rule of the Supreme Court. The statute suggests a maximum of $7200 per year in most counties. However, KRS 31A.010(8) provides that the Supreme Court may make such rules as are necessary relating to the master commissioner. That provision became effective January 2, 1978.
The master commissioner is not a state officer. He is an officer of the court. Shannon v. Ray, 280 Ky. 31, 132 S.W.2d 545 (1939). See CR 53.01.
In OAG 78-751 we concluded that the $7200 limitation of KRS 31A.010(4) relates only to compensation derived from fees arising from actions in which the commissioner executes a judicial sale.
The sharp question here is whether the compensation of master commissioners is a substantive legislative matter or whether it is a procedural matter, or whether it is a matter which is constitutionally subject to fixation by the Supreme Court of Kentucky.
Section 116 of the Kentucky Constitution provides that the Supreme Court shall have the power to prescribe rules governing its appellate jurisdiction, rules for the appointment of commissioners and other court personnel, and rules of practice and procedure for the Court of Justice.
The fixing of compensation of state officials is generally considered legislative in nature. Ordinarily the delegation of compensation fixation would be in violation of §§ 27 and 28, Kentucky Constitution. The old case of Boone County v. Verona, 190 Ky. 430, 227 S.W. 804 (1921), held that the general assembly is without authority to authorize courts to exercise legislative functions except where the constitution especially directs or permits it. As the court suggested in Campbell v. Commonwealth, 229 Ky. 264, 17 S.W.2d 227 (1929), 229, a statute may confer on courts the authority to administrate but not to legislate. Thus in the absence of constitutional restraint, the General Assembly is omnipotent in dealing with matters of legislation and the courts with matters of a judicial nature. Lovelace v. Commonwealth, 285 Ky. 326, 147 S.W.2d 1029 (1941).
In Commonwealth v. Adams, Ky., 26 S.W. 581 (1894), the legislature attempted to delegate to the Court of Appeals the authority to fix the salaries of the Court of Appeals clerk's deputies. The Court of Appeals, in holding the legislation to be unconstitutional, ruled that the language of § 246 of the Constitution, in saying that deputy salaries would be fixed by law, meant that the legislature could not delegate the legislative task of fixing deputy salaries to the judiciary. However, the basis for that decision was eroded in the later decision of Board of Education v. DeWeese, Ky., 343 S.W.2d 598 (1960), holding that § 246 of the Constitution, on compensation of public officers, applies only to those officers directly named and designated in the text of the constitution, and does not include employees not so designated. Cf. § 114, Kentucky Constitution, dealing with court clerks.
It is conceivable that the courts may hold that KRS 31A.010(4), in setting a compensation maximum of $7200 in some counties, could interfere with the proper workings of the courts by their being unable to attract persons who can efficiently and properly carry on the work of master commissioner. The general rule is that any legislation that hampers judicial action or interferes with the discharge of judicial functions is unconstitutional. Arnett v. Meade, Ky., 462 S.W.2d 940 (1971). Under these circumstances, since the commissioners are officers of the court, and since there is always the potential that legislative fixation of commissioners' compensation may tend to hamper the workings of the court, as relates to commissioners, it is our view that the courts would probably uphold the constitutionality of CR 53.08, establishing a compensation ceiling of $24,000 per year for master commissioners. In addition, the case of Ex Parte Auditor of Public Accounts, Ky., 609 S.W.2d 682 (1980) makes it unmistakably clear that the "judicial branch of this state government has exclusive authority to manage its own affairs." (Emphasis added). Thus, while the fixing of the compensation for public officers is ordinarily perceived to be a legislative function, the above principle of the authority of the courts to manage their own affairs compels the conclusion that the establishing of compensation for master commissioners properly belongs to the Court of Justice, and particularly to the Supreme Court.
We therefore conclude that under CR 53.08 the maximum compensation payable to master commissioners in Kentucky is $24,000 per annum. The provision of KRS 31A.010(4), that the master commissioner shall be compensated by fees as provided by rule of the Supreme Court, is so broad that it clearly suggests that primarily the matter of fixing the compensation of master commissioners has indeed been delegated to the Supreme Court.
In 110 counties, the General Assembly in KRS 31A.010(4) has placed a limit of $7200 per year on each master commissioner as relates to judicial sales. In connection with all of the counties of Kentucky, the General Assembly has stated in KRS 31A.010(4) that the circuit court may allow the commissioner a reasonable fee for performing "judicial-type" functions in such cases; however, where the master commissioner does not execute a judicial sale, the $7200 limitation has no application. Then KRS 31A.010(4) provides that "The master commissioner shall be compensated by fees as provided by rule of the Supreme Court." (Emphasis added). It is our view that the allowance by the circuit court of a reasonable fee to the master commissioner for performing judicial-type functions is wholly consistent with the broad overhanging policy that the master commissioner shall be compensated by fees as provided by rule of the Supreme Court.