Request By:
Mr. Fred B. Creasey
Executive Director
Kentucky Association of Counties
205 Capital Avenue
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written us concerning OAG 83-380. Question No. 1 in that opinion reads as follows:
"Aren't the fiscal court and county judge executive jointly responsible with the jailer for the operation of the jail? "
We concluded in that opinion that the operation of the county jail is a joint responsibility of the jailer and fiscal court. The county judge executive, when fiscal court is not in session, is required to implement the policy and formal actions of the fiscal court relating to the fiscal court's joint operative jail responsibility. KRS 67.710. See other specific statutes mentioned in that opinion. You have written that you believe that the opinion is in conflict with some language contained in Sowders v. Atkins, Ky., 646 S.W.2d 344 (1983), which language reads:
"Without going into detail the county judge-executives do not have any statutory authority over the management and operation of the jail that we can find, and none has been called to our attention."
You apparently believe that the statement in Sowders would apply equally to the fiscal court.
In answer to that question, we pointed out that the jailer is immediately responsible for the operation of the county jail. We cited specific statutes imposing that immediate responsibility upon the jailer as a county officer, as a day to day function.
However, the single role of the jailer is not exclusive in the total statutory area of county jail operation. We first pointed out that the operation of a county jail, which is a county institution, not a jailer's institution, involves the conducting, administering, or carrying on of a jail.
We pointed out in that opinion that KRS 441.006(1) explicitly imposes upon the fiscal court the duty of providing "for the incarceration of prisoners arrested in the county or sentenced or held by order of the courts in the county." (Emphasis added). Subsection (2) of KRS 441.006 provides that the fiscal court shall provide for the incarceration of prisoners by "providing and maintaining a jail in the county," or contracting with another county or city for the "incarceration and care" of its prisoners. (Emphasis added). Thus we concluded from that clear and unambiguous statutory language that the jailer and the fiscal court have a joint responsibility for the care and operation of the county jail in an institutional and operational sense. The county's responsibility transcends the mere capital outlay responsibility for providing a jail building.
Our statutory analysis was buttressed by other specific statutory sections. KRS 441.008(1) requires the fiscal court, "in consultation with the jailer, " to adopt an operating jail budget, which jail budget must be integrated with the county budget. (Emphasis added). The jailer receives a monthly salary from the "county jail operating budget. " (Emphasis added). KRS 441.009(1). The fiscal court may prescribe rules for the government and cleanliness of the county jail and the comfort and treatment of prisoners. KRS 441.010(1). The Corrections Cabinet is required to deliver its report as to jail conditions and law violations to both the jailer and fiscal court. See KRS 441.012(4), 441.013(3), and 441.014(2). The jailer is required to submit a quarterly report to the fiscal court concerning physical conditions, the number of jail personnel and personnel needs, and other matters relating to the jail operation as requested by the fiscal court. KRS 441.016(1).
All such jail legislation must be construed and harmonized as one piece of legislation. Daviess County v. Snyder, Ky., 556 S.W.2d 688 (1977). The jailer and the fiscal court are jointly responsible for the operation of the county jail.
Thus we are faced with your question as to whether or not, in considering the above quoted language from Sowders v. Atkins, the county judge executive and fiscal court have any statutory authority over the management and operation of the jail.
In Sowders v. Atkins the trial court declined to certify a class action and dismissed as to all defendants. In the original action certain juveniles challenged regulations allegedly relating to the practice of jailing juveniles charged with status offenses and jailing juvenile public offenders who were not by sight and sound separated from adult inmates. The plaintiffs were juveniles of six different counties and the defendants included county jailers and county judge executives from 78 different counties. The complaint was characterized as a class action for declaratory and injunctive relief and compensatory damages. The complaint alleged violation of the Juvenile Justice and Delinquency Prevention Act, the Civil Rights Act, Fourteenth and Eighth Amendments to the United States Constitution, various Kentucky statutes, various Kentucky and federal case law, and opinions of the Attorney General. The county judge executives were sued for the reason that it was "alleged they are responsible for the financial management of the county jail and the proper care and treatment of juvenile prisoners. " The jailers were sued "for the reason that they are responsible for the care and treatment of juveniles in custody."
Plaintiffs sought to represent a class of all juveniles who are and who might be mistreated. The plaintiffs sought to sue jailers as a class who are mistreating and who may mistreat such juveniles.
The Supreme Court of Kentucky ruled that the motion for certification of a class action for the plaintiffs was properly overruled by the trial court. In addition, the Supreme Court ruled that the trial court did not abuse its discretion in denying certification of the defendant class, i.e., an alleged cause of action against some 78 county judge executives and jailers.
In view of the specific holdings of the Supreme Court in Sowders v. Atkins, it is our view that the appellate court laid down no definite and binding rule as to the statutory questions relating to the responsibility for the operation of the county jail. Apparently the parties to the suit gave no explicit and specific statutory analysis of such responsibility. At most, in the total context of the case, and the appellate issues presented, the court opinion's reference to management and operation of a county jail was merely dictum. The specific rulings of the Supreme Court really never reached the statutory question of responsibility for jail operation.
An appellate court deals with only preserved errors of law, including any claimed abuse of discretion by the trial court. In Sowders v. Atkins, they found none. See City of Louisville v. Allen, Ky., 385 S.W.2d 179 (1964) 184; Stice v. Leonard, Ky., 420 S.W.2d 672 (1967). In Commonwealth v. Williams, Ky., 317 S.W.2d 482 (1958), the court made it clear that where the trial court had no opportunity to rule on a particular question, there would be no alleged error in that regard before the appellate court. In Sowders v. Atkins, the specific and narrow question of the joint responsibility of the fiscal court, county judge executive and jailer was never ruled upon. Also see § 110, Kentucky Constitution and KRS 21A.050, as to the appellate review of the Kentucky Supreme Court. Thus an appellate court can only pass upon alleged errors or abuse of legal discretion committed by the lower court. 5 C.J.S., Appeal & Error, § 1453, p.p. 576-577.
CONCLUSION
For reasons given above, it is our opinion that the jailer and fiscal court are jointly responsible for the operation of the jail. The county judge executive has an implementing function relating to that joint responsibility. The conclusion is based upon the statutory analysis given in detail in OAG 83-380.
Unless the courts would arrive at a different conclusion in a case in which the issue is clearly and plainly presented, it is our belief that the joint responsibility can be modified only by new legislation pinpointing and delineating with sharpness the relative management responsibilities of the jailer, fiscal court and county judge executive.