Request By:
Mr. Martin W. Johnson
Marshall County Attorney
Courthouse, P.O. Box 172
Benton, Kentucky 42025
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As County Attorney of Marshall County, you request the opinion of this office on these questions:
"Please advise if a county attorney or his assistant are persons legally authorized to take the written statements of essential facts that constitute an offense being charged in a complaint issued by the district judge having venue of the offense charged.
"If the county attorney and his assistant are not legally empowered to administer the oath required by RCr 2.02, may they be authorized to administer same by the district judge under the provisions of this rule?"
RCr 2.02 reads:
"The complaint is a written statement of the essential facts constituting the offense charged. It shall be made under oath and signed by the complaining party before a judge or a person who (a) is legally empowered to administer oaths and (b) has been authorized to administer such oaths to a complaining party by written order of a judge for the county having venue of the offense charged. "
The rule expressly requires that the complaint must be made under oath and signed by the complaining party. The oath must be administered before a judge (judicial officer) or a person who (a) is legally empowered to administer oaths and (b) has been authorized to administer such oaths to a complaining party by written order of a judge of the county having venue of the offense charged.
Where a judge does not administer the oath, the non-judge person must satisfy two co-existent elements. One of the elements is that such non-judge person must be legally empowered to administer oaths. In the absence of anything to the contrary, that means authorized by statute to administer oaths. If you receive an appointment as a notary, pursuant to KRS 423.010, you would satisfy that one element listed as (a) in RCr 2.02.
Judge Edward Hill, in Owsley v. Commonwealth, Ky., 428 S.W.2d 199 (1968), 200, 201, in holding, for the Court of Appeals, that a notary public has the power to administer an oath for an affidavit for a search warrant wrote that "KRS Chapter 423, relative to the commission, powers, and liabilities of a notary public is as silent as the tomb on the question of the power to administer an oath. By common law a notary public had no power to administer an oath." The court, under the interchangeability of civil and criminal rules, applied CR 28.01 which authorizes that depositions to be used in the courts may be taken before a notary public, inter alia. Thus the court concluded that a notary public is authorized to administer an oath to an affidavit. The court conceded that, by adopting such an imaginative course, such course was as "devious and unpredictable as the tracks of a beagle hound cold trailing a jackrabbit." See also Holland v. Commonwealth, Ky., 479 S.W.2d 903 (1972) 906.
If the county attorney, or his assistant or secretary, is a notary public, still, if he or she is to validly administer the oath involving the complaint, he or she must also be authorized to administer the oath to a complaining party by a written order of the judge of the county having venue of the offense charged.
Unfortunately, RCr 2.02 was designed to cover matters on a case-by-case basis, and not on some permanent basis involving many cases. As a practical matter, the taking of such oath in any case by a judge (judicial) in the county has no conditions attached to it.
Concerning the second question, if you or your assistant is not a notary, then the judge having venue of the offense charged cannot validly authorize you or your assistant to administer such oath. The rule requires the co-existence of the two elements mentioned above.
As an inevitable offshoot to the issue surrounding the taking of a criminal complaint, it is appropriate to point out that a county attorney, or the assistant county attorney, has no authority to issue a warrant of arrest. In addition, a county attorney, or the assistant county attorney, has no authority to sign a judge's or trial commissioner's name to a warrant of arrest. See Dugger v. Off 2ND, Inc., Ky.App., 612 S.W.2d 756 (1981) 757. See RCr 2.02, 2.04 and 2.06. Subsection (4) of KRS 15.725 specifically provides that a circuit clerk may issue a criminal warrant prepared by the county attorney, or commonwealth's attorney, as the case may be, who certifies, if that is the case, that there is no district judge, circuit judge or trial commissioner available for that purpose. Nowhere in the rules is the prosecutor (county attorney or commonwealth's attorney) given the authority to issue a warrant or to sign a judge's or trial commissioner's name to such a warrant.