Request By:
Mr. Larry Lawson
Clark County Jailer
P.O. Box 497
Winchester, Kentucky 40391
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As Jailer of the Clark County Detention Center, you note that the center has a specific time set aside for inmates to have visitors.
The question:
"Does a district judge have the authority to disregard jail policy and procedure and order certain inmates to have visitors during scheduled hours?"
We assume you refer to county jail prisoners who are awaiting trial in a local court or who have been convicted of a misdemeanor and given a sentence of confinement in the county jail, or who are otherwise lawfully held.
Note that the jailer has the custody, rule and charge of the jail in his county and of all persons in the jail. KRS 71.020. See KRS 71.040 for the jailer's treatment of prisoners.
Under KRS 441.045(1), the fiscal court of your county is required to prescribe rules for the government and cleanliness of the county jail and the comfort and treatment of prisoners, provided such rules are consistent with state law. The Corrections Cabinet is required by KRS 441.055 to prescribe jail standards, including the area of the custody, care and treatment of prisoners. 501 KAR 3:020 requires the jailer to develop and maintain an organizational chart and an operations manual of policy and procedure which has been adopted by the fiscal court and filed with the Corrections Cabinet. Specifically the jailer is required by 501 KAR 3:140, Section 1(4), to have a written policy which defines the jail's visitation rules and regulations, which shall include but not be limited to:
"(a) A schedule identifying no fewer than two (2) visiting days each week, one (1) of which must be during the weekend.
"(b) At least one (1) visit per week per inmate shall be allowed except when an inmate has been assessed a disciplinary penalty for an infraction of rules governing visitation.
"(c) Visits shall not be less than fifteen (15) minutes.
"(d) Two (2) or more persons permitted to visit at the same time shall count as a single visit.
"(e) Children, when accompanied by an adult, shall be permitted to visit inmates.
"The provisions of this subsection shall be effective as of July 1, 1983."
In addition, here are standards for visitation of inmates as recorded in 501 KAR 3:140, Section 1, (5) through (8):
"(5) Attorneys, clergy, and medical personnel shall be permitted to visit inmates at reasonable hours other than during regularly scheduled visiting hours and shall not count as an allotted visit. The provisions of this subsection shall be effective as of January 1, 1983.
"(6) Visitors shall register before admission and may be denied admission for refusal to register, for refusal to consent to search or for any violation. The provisions of this subsection shall be effective as of January 1, 1983.
"(7) Inmates shall not be restricted in regard to whom they may have as a visitor unless the jailer determines that a visitor should be excluded due to the existence of one (1) or more of the following conditions:
(a) The visitor represents a clear and present danger to security.
(b) The visitor has a past history of disruptive conduct at the jail.
(c) The visitor is under the influence of alcohol or drugs.
(d) The visitor refuses to submit to search or show proper identification.
(e) The inmate refuses the visit.
"The provisions of this subsection shall be effective as of January 1, 1983.
"(8) The jailer shall not listen to visitors' conversations but may observe the visitation for security reasons. The provisions of this subsection shall be effective as of January 1, 1983."
It is our opinion that judges of the judicial system would have to observe any existing jail policy and procedure, issued under the above listed authorities, relating to visitation of county jail inmates. It is further our opinion that where a judge of a court, and in exercising the court's sound judicial discretion, believes that justice in a particular case would require the court's imposing some special rule as to visitation of a particular prisoner whose case is pending before that court, the court may so impose the special rule. See 21 C.J.S., Courts, § 31, page 41. Any act of a court in violation of statutory prohibition may be considered to be in excess of jurisdiction. Allison v. Howell, 204 Okla. 404, 230 P.2d 706 (1951). The Supreme Court of Oklahoma in Allison, above, held that where the language of a statute is clear and unambiguous and within constitutional limitations, such law cannot be amended by judicial interpretation to include extraneous matters not within the contemplation of the legislature in the enactment thereof. In a constitutional democracy such as ours there must be by sheer political and sociological necessity a predictability as to what the law is. Justice Black, in Ferguson v. Skrupa, 372 U.S. 726, 10 L. Ed. 2d 93, 83 S. Ct. 1028 (1963), wrote that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.