Eblen, Amos H.

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University of Kentucky

Kentucky Law JournalVolume 43 | Issue 1 Article 21954Legislative Developments in the Field of JudicialAdministrationAmos H. EblenJudicial Council, Commonwealth of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Judges Commons, and the State and Local Government Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journalby an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationEblen, Amos H. (1954) "Legislative Developments in the Field of Judicial Administration," Kentucky Law Journal: Vol. 43 : Iss. 1 ,Article 2.Available at: https://uknowledge.uky.edu/klj/vol43/iss1/2Legislative Developments in the Field ofJudicial AdministrationBy AMos H. EBLEN*It was during the 1950 session of the General Assembly thatthere first appeared in Kentucky an awareness of the need formeans by which a continuous study could be made of the statejudicial system. Enactments resulted in the creation of two newagencies, the Civil Code Committee and the Judicial Council.The first of these has since completed its assigned task in ad-mirable fashion and expired on July 1, 1958. It has been suc-ceeded by an Advisory Committee on rules of civil procedureoperating under direction of the Court of Appeals. The JudicialCouncil was established as a permanent body and assigned theduty, among others, of carrying on a continuous survey and studyof the organization, operation, condition of business, practice andprocedure of the state judicial system.The time that elapses between the beginning of any studyand the approval of a suggested change, if any, is necessarilylong. Where legislation is needed, this period of time may be,and usually is, longer and may require a carefully planned andcoordinated campaign. As a consequence of this and other fac-tors, the overall program for improvement of the administrationof justice is, and should be, a slow process. In view of this, itis encouraging that so much progress has been made in Kentuckyin four years and that the 1954 session of the General Assemblycontinued the steady pace and, also, laid the basis for considera-tion of fundamental changes by directing a study of the judicialdepartment with particular reference to court structure.One of the most significant enactments of the 1954 session ofthe General Assembly was House Bill No. 28, establishing thefirst retirement program for circuit judges in Kentucky. Thislegislation was prepared and enacted to meet two of the mosttroublesome problems confronting the administration of justice0 A.B., LL.B., University of Missouri; S.J.D. Harvard University. Secretary,Judicial Council, Commonwealth of Kentucky, Frankfort.58 KENTucKY LAW Jour1NALin Kentucky. The first of these takes much of the time of theChief Justice and is generally as unpleasant and irritating as itis constant. It is the necessity for and the securing of attorneysto act as special judges.There will always be a need for special judges to act due tothe disqualification or illness of the regular judge. The framersof the present constitution of Kentucky were aware of this, andvarious methods for dealing with it were advocated. The presentmethod is authorized by statute and has the sanction of longusage. It calls for the selection of attorneys to act for the regularjudge when other regular judges are unavailable, and it is un-pleasant and irritating, because in so many instances the needfor them is not known sufficiently in advance, and attorneys mustbe requested to make the sacrifice of leaving their offices andtheir practice. Fortunately, in most cases, they have been public-spirited and have accepted.Within the past two years, considerable relief has resultedfrom the splendid manner in which the regular circuit judgeshave accepted assignments as special judges. During this time,more than one-third of them have taken one or more designationsranging from single cases to full terms. Over the same period,two former circuit judges, Roscoe C. Littleton and Lawrence F.Speckman, have rendered invaluable service as special judgesand with such efficiency and capability that attorneys have re-quested their re-assignment when possible. Another enactmentof the 1954 session, which will be noted later, may lead to evengreater use of the regular judges.The second troublesome factor that House Bill No. 28 wasdesigned to meet and relieve was the lack of any provision forsecurity in the later years of the circuit judge from which therewere three undesirable results. Many good and able men feltforced to leave the bench in order to make some provision forthe future; other capable attorneys who might have sought theoffice found it unattractive because of the absence of any ade-quate retirement system; and judges who were physically in-capable of performing the continuous duties of a regular judgehad to remain in office since they had been unable to accumulateany property on the small salary paid. This last condition, also,increased the demand for special circuit judges.JuDiCIAL ADMINISTRATION 59House Bill No. 28 attacks these two problems by creating theoffice of special circuit judge, and making eligible therefor eachperson who, after July 1, 1954, has served as a regular circuitjudge; whose total service, including service prior to July 1, 1954,is as much as ten years; who has contributed for a minimum oftwo years to the special circuit judge fund; and who is sixty yearsof age. Appointments are to be made by the Court of Appeals,and the appointees are required to serve as special judges andperform such other duties as may be assigned them by the Courtof Appeals or the Chief Justice, apd may not hold any otherpublic office or otherwise engage in the practice of law whileholding the office of special circuit judge. Should any specialcircuit judge fail or neglect, without cause, to perform any dutyassigned to him, he shall be forthwith removed from his officeby the Court of Appeals.Each special circuit judge shall be paid an annual salary ofthirty-five hundred dollars, plus one hundred fifty dollars for eachyear of service as a regular circuit judge in excess of ten, withthe maximum salary set at five thousand dollars. When servingas a special judge in a county not his residence, he, also, shallbe paid his expenses but no per diem. To provide a fund fromwhich the salaries of special judges are to be paid, each circuitjudge is required to contribute two per cent of his salary paidhim by the state as a regular circuit judge, to which the state hasadded an appropriation of $82,800 for 1954-55 and $7,800 for1955-56. By July 1, 1956, the earliest date an appointment couldbe made, the fund will exceed $57,000 plus such interest as mayhave been earned through investment. It has been estimatedthat the state will recoup what it contributes in the reduced costsof special judges which, at the present time, totals about $20,000each year. The fund is under the exclusive supervision and con-trol of a committee of five, composed of a Justice or Commis-sioner of the Court of Appeals to be designated by the ChiefJustice, three circuit judges to be selected by the circuit judges,and a member of the Kentucky Bar Association appointed by thepresident of that organization.In order to remove all doubts as to the authority of all regularcircuit judges to act as special judges in all circuit courts, HouseBill No. 172 was prepared and enacted. Prior to this legislation,60 KENTucK LAw JouRNALKRS 23.220 did not authorize the issuance of a commission as aspecial judge to judges of courts of continuous session. Whethersuch a judge could have been designated special judge, underthe authority to select an attorney having the qualifications of ajudge, is a question that has not been presented. House Bill No.172 provides that the regular circuit judge may act as specialjudge of the circuit courts and does away with the separate com-missioning of any regular judges as special judges by giving tothe regular commission the added effect of a commission as aspecial judge with jurisdiction coextensive with the state.There was, also, a lack of express authority for a regular judgefrom outside a county having a court of continuous session toact as a special judge therein, and House Bill No. 172 suppliesthis by placing courts of continuous session and term courts onthe same basis. Provision for selection of an attorney by theparties when the regular judge cannot act has been retained, butthe technical necessity for attempting to obtain an agreementupon an attorney has been eliminated where sufficient time is notavailable in which to ascertain if the parties can agree, or if it isimpracticable to attempt to obtain agreement because of thelarge number of parties. The regular judges make these determi-nations and the clerk then certifies the facts to the Chief Justice.The beneficial effects of House Bill No. 28 and House Bill No.172 will not be fully noticeable at first, but in time they may wellprove to be among the most salutory legislation affecting thejudicial process in Kentucky. The circuit court is the basic tri-bunal in our court structure. To the extent that the ablest andbest-fitted men are attracted to the office; that capable and ex-perienced judges are induced to remain in office and without adisturbing concern for the future; and that the special judgeproblem is answered by an available pool of trained judges,whether regular or special circuit judges-to that total extentthere will have been a decided improvement in the administra-tion of justice in Kentucky, a real and lasting achievement.The second major legislative enactment affecting the opera-tion of the courts was Senate Bill No. 33 revising the statutorylaw relating to the qualifications, exemptions, selection, empanel-ing and service of grand and petit jurors. The grand jury, as aninvestigating and charge preferring agency in our criminal law,JuDiciAL ADM TRATON 61and the petit jury, as the finder of the facts in criminal and civilcases, are essential and integral parts of our judicial process. It isjust as important and necessary that the juries be composed ofwell-qualified people of integrity and honor as that the judgemeasure up to high standards. It is frequently said that juryservice is a duty and privilege of citizenship, and one of the mostimportant. It is regrettable that in so many instances people whopride themselves on being good citizens must be coaxed andeven forced to serve on grand and petit juries. Senate Bill No.33 removes many of the legal dodges, as well as some of thelimitations in the selection process, that have permitted manyto escape jury duty. The principal deficiency in this 1954 enact-ment, and it does not purport to be ideal, is probably its failureto go far enough in this respect.The primary change in the qualification of jurors is the re-moval of the "housekeeper" requirement and the substitutiontherefor of citizenship and residence in the county for at leastone year. The same change is also made in the qualifications ofjury commissioners. The many and illogical exemptions whichhad been generously granted by piecemeal legislation over aperiod of time, and which ranged from members of boards ofeducation to public accountants, were all stricken and exemptionor, more properly, excuse from jury service now rests in the dis-cretion of the judge. It is worth noting that women are no longerexempt from service on grand and petit juries. Under the law,prior to Senate Bill No. 33, the jury commissioners were limitedto the persons whose names appeared on the taxrolls, except incounties containing a city of the second class and a court of con-tinuous session in which the jury commissioners might also con-sult the last returned registered election voters' book. The taxrolls contain the names of many persons who are deceased orwho have moved away. Unless the jury commissioners have anacquaintance with the county residents, they will pick many ofthese, and usually have, in urban areas. The current voters'registration records should be a far more accurate list of theeligible persons, and Senate Bill No. 33 recognizes this by givingthe jury commissioners of all counties access thereto as well asthe tax records. The number of names the jury commissioners62 KE c'KY LAw JouNALare required to select and place in the drum has been increasedin some counties.A change of major significance is found in section 14 of theact. Rather than draw a number of names for service on thegrand jury, and then draw names for service on the petit jury,the judge is now authorized to draw sixty names (seventy-twoin the criminal branch of courts of continuous session) fromwhich the grand and petit jurors are to be selected by the judgeas he sees fit. This will permit the judge to make better use ofthe persons whose names are drawn and in the capacity he thinksthey are best suited. The judge may draw additional names whenhe deems it advisable because of the nature or notoriety of acase or for other reasons. The slips containing the names of thosedrawn from the drum by the judge must be preserved until thejuries have been formed, and the slips bearing the names of thoseexcused because of temporary disability are then to be returnedto the drum.After the judge has drawn the names from the drum, the jurylist is placed in a sealed envelope and delivered to the clerk. Theclerk then must make a copy of the list and deliver it to the sheriffin time for him to summon the persons and make return thereonseven days in advance of the day they are required to attend.This change was made so that the judge might know a week inadvance the number of persons upon whom the sheriff could notmake service, and, if necessary, could draw additional names fromthe drum. The judge may have the full number summoned toappear the first day, or he may specify less than the full numberfor the first day and the subsequent day on which he desires theremainder to appear. In this way the judge may have only hisgrand jury in session the first week, or such time as he deemsproper, and begin his petit jury cases later in the term. This isin keeping with the underlying policy of Senate Bill No. 33 togive the judge greater control over the use of the juries so thathe may make the most efficient use of his and their time. Alongwith the greater control goes an increased responsibility.Should one of the grand jurors become ill or the court find itnecessary to excuse one or more during the session, replacementsmust be from the current list of persons summoned and when thelist has been exhausted by drawing from the drum. This doesJuDiciAL AnDmDMTIN ION 63away with the use of bystanders on the grand jury. Finally, the1954 enactment increased the time a grand jury might remainin session by providing that in counties not containing a city ofthe first class the grand jury might sit for six days at any term,which can be increased up to nine additional days if necessary.In Jefferson County, the grand jury is authorized to remain insession from the first Monday of the month for which it is im-paneled to, but not including, the first Monday of the followingmonth in the discretion of the court.Many of the changes made by Senate Bill No. 83 have beenin effect in terms or sessions of courts which began after March1954. Circuit judges who have had the opportunity to observethe operation of the juries under these changes have been unani-mous in their approval. An increased efficiency of juries, as wellas a more interested and higher caliber juror, should be evidentafter the changes in the selection process have become operative.Senate Bill No. 88 may well prove to be one of the most salutaryacts of the 1954 session of the General Assembly.Two other acts are worthy of mention. The first, House BillNo. 71, permits the circuit judge, by order of record, to determinethe terms, out of the total number authorized, at which criminaland penal cases shall be heard. The second, House Bill No. 465,abolishes the offices of Sergeant-at-Arms, Tipstaff, and Bailiff,and replaces these three with an Administrative Director to beappointed by the Court of Appeals. The Administrative Director,under the direction of the Court of Appeals, is to ascertain thenecessity for assignment of special circuit judges, make reportsconcerning their performance of duties, certify the expenses andcompensation payable to them, and generally perform such serv-ices in the supervision of the state judicial system as the Courtof Appeals may require. Actually, this latter act does little morethan make a change in title.Studies that could result in recommendation for changes inour court structure and the divorce laws and their administrationare directed to be made by two resolutions. Senate ResolutionNo. 52 calls for a survey and study of the Judicial Departmentwith particular reference to the desirability of establishing anintermediate appellate court, and a separate court of original juris-diction with continuous term in each county with transfer theretoKENTUcKY LAW JOURNALof the present judicial functions of the county judge. Thus anopportunity is presented to carefully analyze our court structurein the light of present-day litigation and legal processes, and, inso doing, to give consideration to the most recently advocatedplan of court organization which calls for one great court havinga number of specialized functional divisions. Two of the prin-cipal advantages claimed to result from this plan are the avoid-ance of much litigation over jurisdictional questions and a moreefficient use of judicial man power since all judges could servein all divisions. This study is to be made by the Legislative Re-search Commission in cooperation, and by and with the adviceand counsel of the Judicial Council, the Kentucky State BarAssociation, and the members of any special citizens committee.which the Governor may see fit to appoint for that purpose.Through inadvertence, the Constitutional Review Commission,which has already done much research in this field, was notnamed in the Resolution, but has accepted the invitation of thenamed agencies to participate in the study. A report is to bemade to the 1956 General Assembly.House Resolution No. 41 directs the Judicial Council to makea thorough investigation of our divorce laws and to report itsfindings with proposed legislative revision to the 1956 GeneralAssembly, incorporating therein its findings with respect to "Fam-ily Courts" which have operated successfully in some states.Insofar as possible, the study required to be made by this Resolu-tion will be coordinated with that done pursuant to SenateResolution No. 52.Considering the many demands that are made on our legisla-tive body during the short time it is in session, it is evident thatthe judicial department and its operation received fair and gen-erous treatment. The bench and bar should be deeply apprecia-tive, and every effort should be made to take the fullest advantageof the opportunities and to continue the advances which thislegislation has made possible.

Legislative Developments in the Field of Judicial Administration

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Legislative Developments in the Field of Judicial Administration

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