Request By:
Mr. Joseph H. Conley
Nicholas County Attorney
Carlisle, Kentucky 40311
Opinion
Opinion By: David L. Armstrong, Attorney General
We concluded in OAG 83-206 that the responsibility for preparing subpoenas for witnesses to appear in district court is one of the county attorney. See KRS 15.715(5). We also concluded in that opinion that the circuit clerk has the duty to sign and issue such subpoenas and put them in the hands of peace officers empowered to serve process, usually the county sheriff. We cited KRS 30A.140, which provides that "every clerk (circuit clerk) shall perform such additional duties as may be prescribed by statute or court rule. "
You enclosed a copy of a letter written by a staff attorney of the Administrative Office of the Courts to the Nicholas Circuit Clerk. In that letter the attorney of the A.O.C. disagreed with the opinion of the Attorney General to the extent that the opinion concludes that the circuit clerk must put the subpoena into the hands of a sheriff or other peace officer. That attorney's letter contains the statement that "No statute or court rule directs the clerk to deliver a subpoena to the sheriff or other person for service." She cited § 245.2 of the Clerk's Manual, Number 6, as providing that the circuit clerk must "Give the subpoena and a copy to the party to deliver to the sheriff or other person for service." The A.O.C. attorney cites RCr 1.02 for her proposition that the directives contained in the circuit clerk's manual have the status of Supreme Court Rules. RCr 1.02(2) reads:
"(2) These Rules govern procedure and practice in all criminal proceedings in the Court of Justice. To the extent that they are not inconsistent with these Rules, the regulations, administrative procedures, and manuals published by the Administrative Office of the Courts upon authorization of the Supreme Court relating to internal policy and administration within the Court of Justice shall have the same effect as if incorporated in the Rules."
The amendment of RCr 1.02 of October 14, 1977, added to the rule what is now essentially subsection (2), except that it did not contain the phrase "To the extent that they are not inconsistent with these Rules." That qualifying concept was added in amendment of June 12, 1981. However, in connection with manuals, published by the A.O.C. upon authorization of the Supreme Court, having the effect of the Rules, it must be noted that such manuals are specifically restricted to those manuals "relating to internal policy and administration." (Emphasis added).
Contrary to the view expressed by the attorney of A.O.C., KRS 70.075 reads:
"It shall be the duty of the sheriff, or of one (1) of his deputies, to attend at the clerk's office daily - Sundays excepted - to receive any process that may be issued, and the clerk shall deliver to him any process remaining in his office."
The above statutory provision was originally § 46 of the old Kentucky Civil Code of Practice. By an act of 1952 (Ch. 84, § 1), the Statute Revision Commission was directed to transfer § 46 of the Civil Code, along with other sections, to the Kentucky Revised Statutes.
KRS 70.075 is still an effective statute, as relates to the issuance of any process by the clerk. It has not been repealed nor amended since the 1952 Act. The Statutes Reviser has written nothing in an annotation to the statute as to its being superseded by a clerks' manual. In fact, the Old Court of Appeals (the highest court at the time) wrote in
Blue Grass Mining Co. v. Stamper, 267 Ky. 643, 103 S.W.2d 112 (1937) 113, as follows:
". . . for it is the official duty of the clerk to see that the process is delivered to the sheriff for service, and of the sheriff or one of his deputies to attend the clerk's office daily to receive such process as may have been issued. Section 46, Civil Code of Practice." (Emphasis added).
That opinion in Blue Grass Mining Co. v. Stamper could not have been stated in clearer or more explicit terms.
In the earlier case of
Blue Grass Mining Co. v. North, 265 Ky. 250, 96 S.W.2d 757 (1936), the court ruled as follows at page 759:
"A summons issued by the clerk and delivered to the plaintiff or his attorney is not deemed to have been issued in good faith until it is given to the sheriff or other proper officer to be served." (Emphasis added).
The holding in Blue Grass Mining Co. v. North means that the then highest appellate court did not subscribe to the circuitous circumstance of the clerk's delivering process to a party or his attorney. The court was not only upholding what is presently KRS 70.075, but was emphasizing that issuance of process in good faith requires, in any event, that such process be placed in the hands of the process server designated as such by law. The courts must, even procedurally, in connection with the issuance of process, work strictly within the confines of the orbit of duties of public officials, not with parties or their attorneys, in issuing the process of the courts. See the earlier and leading case of
Louisville & N.R. Co. v. Little, 264 Ky. 579, 95 S.W.2d 253 (1936) 254, citing this ancient and still effective statute.
The Court of Appeals of Kentucky, as to issuance of process in good faith, in
Allen v. O.K. Mobile Home Sales, Inc., Ky.App., 570 S.W.2d 660 (1978), again adhered to the law that it is the official duty of the clerk to see that the process is delivered to the sheriff for service, citing as authority the cases of Blue Grass Mining Co. v. Stamper, Blue Grass Mining Co. v. North, and Louisville & N.R. Co. v. Little, all mentioned above, and CR 4.01. In Allen v. O.K. Mobile Home Sales, Inc., the court wrote this at page 661:
"As stated in
Louisville and Nashville Railroad Co. v. Little, 264 Ky. 579, 95 S.W.2d 253 (1936), the taking out of summons is presumptive evidence of an intention to have it served in due course. This is a rebuttable presumption. If the evidence shows that the clerk issued the summons conditionally, i.e., at the request of the attorney the summons was delivered to him with the intention of the attorney to deliver it to the sheriff at some future time, then the presumption of good faith issuance is rebutted if the service of the summons is made after the right to sue ends."
In
Whittinghill v. Smith, Ky.App., 562 S.W.2d 649 (1978), Judge Vance, for the Court, in citing Louisville and N.R. Co. v. Little, above, cited this portion of the Little case:
"The taking out of summons is presumptive evidence of an intention to have it served in due course, but that presumption may be rebutted by the facts. It may have been issued to be used or not, as circumstances thereafter required. Service may have been intentionally withheld by direction of the plaintiff until the occurrence of an event upon which his decision as to effecting the process depended. In other words, causing a summons to be issued by the clerk conditionally is not causing it to be issued in good faith. An intention to postpone starting the litigation is thereby evidenced. All the authorities are to the effect that the cause of action is not commenced until there is a bona fide intention to have the summons filled out and signed by the clerk, accompanied by bona fide, unequivocal intention to have it served or proceeded on presently or in due course or without abandonment. Action and intention combined constitutes the commencement of the suit, because a summons filled out and signed with no intention of having it served is altogether inoperative."
It is obvious that if the direction given in the clerk's manual to give the subpoena and a copy to the party to deliver to the sheriff were considered as the law on such process, it would set the stage for the issuance of process conditionally by the clerk. In stark contrast, the old principle given in KRS 70.075 is direct and clear cut, by its merely providing that all process shall be directly put into the hands of the sheriff. That approach furnishes no basis for a break down in good faith in issuance of process. As the court said in Louisville and N.R. Co. v. Little, above, causing a summons to be issued by the clerk conditionally is not causing it to be issued in good faith. See CR 4.01(1)(b).
CONCLUSIONS
(1) KRS 70.075 is in reality a "duty" or "functional" statute embracing the interrelated work of the circuit clerk and the sheriff, although it is supportive of the procedural functions of the clerk and sheriff in the issuance and service of process. It is our opinion, until the appellate courts tell us otherwise within the frame of litigation, that the clerk's manual rule permitting the clerk's delivering a process to the party to deliver to the sheriff is in conflict with and a circumvention of KRS 70.075, and thus the clerk's manual rule must give way to the dictates of KRS 70.075.
(2) The amendment of October 14, 1977, relating to RCr 1.02, was in effect at the time of the ruling in Whittinghill v. Smith, above. That amendment of RCr 1.02 was in effect at the time of the holding of Allen v. O.K. Mobile Home Sales, Inc., above. Thus the Court of Appeals of Kentucky in those two cases did not even mention RCr 1.02 in facing the issue of whether process was issued in good faith. It did not mention the clerks' manual rule. Those cases reiterated prior holdings of the old Court of Appeals that issuance of process in good faith requires simply that the clerk place the process in the hands of the sheriff for service. The issuance of a summons in good faith was described, in
Browning Mfg. Div. v. Paulus, Ky., 539 S.W.2d 296 (1976) 298, as meaning that the summons must be issued with the good faith intention that it be served presently or in due course.
(3) As reflected in the cases cited herein, the case holdings recite the underlying reason (raison d'etre) for the court's insistence that the clerk actually deliver to the sheriff or his deputy process issued by the clerk. The clerks' manual rule is in direct conflict with the ancient statutory principle of KRS 70.075, established by the General Assembly. In addition, the clerks' manual rule transcends the matter of "internal policy and administration", as expressed in RCr 1.02(2).