Request By:
Mr. Earl R. Marshall
Greenup County Sheriff
P.O. Box 318
Greenup, Kentucky 41144
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The City Police Chief of Flatwoods, Kentucky, as you have written, believes that he should serve all warrants within his city boundaries. As Sheriff of Greenup County, you disagree. You believe you can serve warrants anywhere in your county. You are correct as will be indicated hereinafter.
Your question is whether or not you can serve a warrant, issued by a court in your county, anywhere within your county boundaries, including city territory located within your county boundaries.
THE IMPLICATIONS OF KRS 431.420
KRS 431.005(1) provides, inter alia, that a peace officer may make an arrest in obedience to a warrant. KRS 446.010(24) defines a peace officer as including sheriffs.
KRS 431.420 reads:
"Any warrant issued by district court for an offense committed within a city shall be served by the police department of that city if the warrant is to be served within the city limits."
Flatwoods is a third class city in Greenup County. KRS 81.010(3). KRS 431.420 narrowly relates to warrants issued by a district court in your county. Obviously under the express language of KRS 431.420, if the warrant is issued by a district court of your county for an offense committed within a particular city of that county, the court is required to place the warrant in the hands of that city's police force for serving, if the warrant can be served within the city limits. As a practical matter, this simply means that if the warrant issued by a district court involves an offense committed in a particular city of the county, the district court must first place the warrant with the police force of that particular city for serving. If the city police are unable to find the defendant for the purpose of serving the warrant and making the arrest, the court may then deliver the warrant to the sheriff of that county for the purpose of serving the warrant on defendant if he is found in the unincorporated area of Greenup County.
THE ENFORCEABILITY OF KRS 431.420
As a general proposition, the sheriff is required, under KRS 70.070, to execute and make due return of all court process which may come to him. This means that he must serve in his county any process placed in his hands by the judge of any court. See KRS 70.140 and 24A.140, relating to the sheriff's serving the circuit and district courts.
A warrant of arrest is required to be directed to "all peace officers" in the Commonwealth. RCr 2.06(1). RCr 2.10(1) provides in part that "A warrant of arrest may be executed by any peace officer. " (Emphasis added). A peace officer includes sheriffs, constables, coroners, jailers, marshals and policemen. KRS 446.010(24).
The Court of Appeals, in Parrott v. Commonwealth, Ky., 408 S.W.2d 614 (1966), observed that a warrant of arrest is required to be directed to "all peace officers" in the Commonwealth (RCr 2.06, and it may be executed by "any peace officer" (RCr 2.10(1)). See also KRS 431.005. The court went on to say this at page 615:
"No reason is apparent why the technical designation of specific peace officers should deprive other such officers of their authority when such warrant is delivered to them for execution."
Thus the court issuing a warrant has the authority to determine the peace officer to whom the warrant will be delivered for execution.
The court in
Richmond v. Com., Ky., 637 S.W.2d 642 (1982) 645, wrote that "warrants of arrest run to the four corners of the realm; that is, a judge in Pikeville can issue a warrant for the arrest of a person in Hickman." That observation is wholly consistent with RCr 2.06(1), which establishes the very nature of the process. As we said above, that rule requires that "the warrant shall be directed to all peace officers in the Commonwealth and shall direct that the defendant be arrested and brought before the court to which it is returnable." (Emphasis added). The very nature of the process at once suggests that the court of jurisdiction must have a discretion as to the placing of the warrant in the hands of an appropriate peace officer for execution.
We believe the courts would hold that any restriction placed upon the courts' discretion in this regard will not be enforced in the courts. In addition, the placing of a warrant of arrest with the city police, under KRS 431.420, might permit the defendant sufficient time to remove himself entirely from the county while the city police attempt to find the defendant in the city to arrest him.
The critical point here is that KRS 431.420 is in direct conflict with the general policy of the law, which is that the warrant is directed to all peace officers of the Commonwealth, and thus gives the issuing court the discretion as to the delivery of the warrant to a particular peace officer. It is in conflict with the rule that a warrant of arrest may be executed by any peace officer. RCr 2.06(1), 2.10(1). Both RCr 2.06 and RCr 2.10 were amended June 12, 1981, which was subsequent to the enactment of KRS 431.420 in 1978. The old
Court of Appeals, in Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949) 400, wrote this as follows:
"It is an elementary rule of statutory interpretation that whenever in the statutes on any particular subject there are apparent conflicts which cannot be reconciled, the later statute controls."
Thus we are inclined to believe that the courts, when presented with the question, would rule that the general law expressed in RCr 2.06 and 2.10 governs, and that KRS 431.420 is unenforceable.
However, the most important consideration here is that the statute is in direct conflict with the Criminal Rules. KRS 447.154 reads:
"No act creating, repealing, or modifying any statute shall be construed directly, or by implication, to limit the right of the Court of Justice to promulgate rules from time to time or to supersede, modify or amend any rule so promulgated. Nor shall any statute be construed to limit in any manner the power of the Court of Justice to make rules governing practice and procedure in the courts."
Sections 109 and 110 of the Kentucky Constitution relate to the Judicial Department. "Their purpose", as declared in Ex Parte Auditor of Public Accounts, Ky., 609 S.W.2d 682 (1980) 685, "is to make it unmistakably clear that the judicial branch of this state government has exclusive authority to manage its own affairs." (Emphasis added). Elsewhere in that opinion the court said, in referring to KRS 56.030, which requires the Commonwealth to be named as grantee of any real property conveyed for the use of any of its agencies or officers, that while the ownership of a building may not constitute "practice and procedure" within the meaning of KRS 447.154, it does come within the administrative authority of the Court of Justice and, as such, cannot be restricted or prohibited by statute.
Judge Clay, in Dean v. Gregory, Ky., 318 S.W.2d 549 (1958) 553, wrote this:
"If there is a conflict between a statute and this Civil Rule, which we do not think exists, the Civil Rule would govern. KRS 447.154 and 447.156."
Thus the most potent reason for the unenforceability of KRS 431.420 lies in the simple fact that the statute is in direct conflict with the Criminal Rules. For that reason we do not believe the courts will let it (KRS 431.420) stand.
CONCLUSION
(1) It is our opinion that the courts would hold that KRS 431.420 is unenforceable, since it is in direct conflict with the law dealing with the nature and service of warrants of arrest as reflected in RCr 2.06 and RCr 2.10. Under KRS 447.154, the statute must give way to the Criminal Rules. In addition, those rules are later in terms of their amendments, and thus speak the last word on this aspect of the law. In the Acts of Kentucky 1962, Ch. 234, the General Assembly adopted the policy that the prescription of rules governing details of procedure will be left, in considering the function of the judiciary under the Kentucky Constitution, to the discretion of the judicial department of government. Thus the judicial rules promulgated by the Supreme Court of Kentucky are in effect recognized legislatively as the law in Kentucky in that area. See Section O, Rules of Criminal Procedure. OAG 78-403 is modified accordingly.
(2) It is our opinion that a county sheriff can serve a warrant, issued by any court in his county and delivered to him for service, anywhere within his county boundaries, including city boundaries in his county and even where the offense is committed in the city.
(3) The court issuing a warrant of arrest has the authority to place the warrant for service with any peace officer of the county it chooses, including the sheriff.