Request By:
Honorable Robert W. Riley
Deputy General Counsel
Department for Human Resources
209 St. Clair Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: George Geoghegan, III, Assistant Attorney General
This is in response to your letter of May 23, 1977 wherein you inquired whether it is the duty of the Commonwealth's Attorney to prosecute cases involving adjudication of an incompetent under KRS Chapter 203.
KRS 203.012(1) gives the circuit court exclusive jurisdiction of all lunacy inquests involving adjudications of incompoetency. KRS 69.010(1) in describing the duties of the Commonwealth's Attorney provides in part:
"Except as provided in subsection (2) and (3) of this section, the Commonwealth's attorney shall attend each circuit court held in his judicial circuit, and prosecute all violations of the criminal and penal laws therein. . . ."
In Cadden v. Commonwealth, Ky., 242 S.W.2d 409 (1951), the Court of Appeals said:
". . . . A lunacy inquest is a special proceeding to determine the mental status of a person. It partakes of the nature of a civil action in personam as it is primarily for the good of the person whose mental state is in question. 28 Am.Jur., Insane and Incompetent Persons, Sec. 11. Yet, since the public is concerned and the trial involves the element of personal liberty, it has been regarded as a quasi criminal proceeding." (page 410)
Acc'd. Denton v. Commonwealth, 383 S.W.2d 681 (1964).
In both Cadden, supra, and Denton, supra, the court referred to the proceeding involving mental competency as a lunacy inquest. In addition, the court indicated that it was a special type of civil proceeding. The lunacy inquest is nonadversary in form. Lake v. Cameron, 364 F.2d 657 (D.C., Cir. 1966); Hawkyard v. People, 169 P.2d 178 (Col. 1946); In re Ryan, 291 Mich. 673, 28 N.W. 291 (1939).
Before going any further, it is of significance to examine the nature and form of a coroner's inquest in order to make comparisons. KRS 72.030 provides that the coroner, upon the request of any responsible citizen, shall investigate and hold an inquest in the county where a death occurs. KRS 72.050 provides that in the event a jury is necessary, the coroner shall summon and swear a jury composed of six reputable citizens of the county. The coroner's jury shall inquire upon oath and state in writing the particulars as to the cause of death. The coroner's inquest is a special proceeding civil in nature and nonadversary in form. The Commonwealth's Attorney is not required to participate.
KRS 69.010(1) requires the Commonwealth's Attorney to prosecute all violations of the criminal and penal laws which are pending in the circuit court. The lunacy inquest provided for by KRS Chapter 203 is civil rather than criminal in nature. It is nonadversary in form. Therefore, the Commonwealth's Attorney is not required to prosecute. However, this is not to say that he cannot participate because KRS 69.010(1) also provides in part that he ". . . attend to all civil cases and proceedings in which the Commonwealth is interested in the circuit courts of his judicial circuit. . . ." Furthermore, KRS 203.014 specifically authorizes the Commonwealth's Attorney to intervene on behalf of the defendant if he deems it necessary.
Although you did not specifically inquire as to the job of the Commonwealth's Attorney to prosecute cases involving involuntary hospitalization of the mentally ill, it is our opinion that this is a question we cannot avoid since it is so closely related to the one which you posed.
KRS Chapter 202A provides for the involuntary hospitalization of persons who are mentally ill. KRS 202A.070 sets forth the procedure for the involuntary hospitalization of a mentally ill person for sixty consecutive days. KRS 202A.080 sets forth the procedure for the involuntary hospitalization of a mentally ill person for 360 consecutive days. A petition for the involuntary hospitalization of a mentally ill person for either 60 consecutive days or 360 consecutive days must be filed in the circuit court. S.B. 15, §§ 185 and 186, 1976 Extraordinary Session of the General Assembly. KRS Chapter 202A is just another type of lunacy inquest. Whereas KRS Chapter 203 provides for a lunacy inquest to determine competency, KRS Chapter 202A provides for a lunacy inquest to determine whether the allegedly mentally ill person is so mentally ill as to present an immediate danger to himself and others whether the least restrictive mode of treatment requires hospitalization and whether treatment which can reasonably benefit the person is available at the hospital.
We opined earlier that the lunacy inquest outlined in KRS Chapter 203 was a specialized proceeding civil in nature and nonadversary in form. We likewise opine that the lunacy inquest described in KRS Chapter 202A is also a specialized proceeding civil in nature and nonadversary in form. Therefore, the Commonwealth's Attorney is not required to prosecute the proceedings initiated under KRS Chapter 202A.
Although KRS Chapter 202A does not contain a provision specifically authorizing the Commonwealth's Attorney to intervene and prevent the involuntary hospitalization of any person who in his opinion is not mentally ill, this is of no significance. It was not KRS 203.014 upon which we were relying in reaching our decision as to the duties of the commwealth's Attorney under KRS Chapter 203. It was instead KRS 69.010(1). It provides the authority to intervene on behalf of any party.
Chapter 202A or 203 are special proceedings civil in nature. Although it can be said they are quasi criminal, they are nevertheless nonadversary in form. Consequently, the Commonwealth's Attorney has no duty to prosecute. The court should handle the proceedings in a manner similar to which a coroner handles a coroner's inquest. Once again, this is not to say that the Commonwealth's Attorney cannot intervene on behalf of any party if he determines that it is in the best interest of the Commonwealth to do so. When a lunacy inquest has been filed under KRS Chapter 202A or 203, the Commonwealth's Attorney has two options: do nothing, or intervene on behalf of some party.