Request By:
Mr. Michael C. Davis
Directing Attorney
Appalachian Research and Defense Fund of Kentucky, Inc.
410 Third Street
Pikeville, Kentucky 41501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter contains a request for an opinion of this office regarding the duty imposed upon the commonwealth's attorney and county attorney pursuant to KRS 202A.085. That statute reads:
"(1) All proceedings under this chapter shall be deemed mental inquests which are non-adversary in nature, but in which the Commonwealth has an interest in ensuring that the proceedings are properly and expeditiously conducted, for the benefit and protection of both the respondent and society.
"(2) In all proceedings under this chapter, it shall be the duty of the Commonwealth's attorney and county attorney to represent the interest of the Commonwealth and to assist the court in its inquiry by the presentation of evidence. "
The statutes provide for certain periods of involuntary hospitalization for persons found to be mentally ill and presenting an immediate danger or threat of danger to self or others if not restrained, and who would benefit from hospitalization as the least restrictive mode of treatment. See KRS 202A.040 [7 days], 202A.050 [7 days], 202A.070 [60 days], and 202A.080 [360 days].
The seven-day commitment procedure, under KRS 202A.040 and 202A.050 may be conducted by a judge of a circuit or district court. The 60-day and 360-day procedure must be conducted by the appropriate circuit court. 1 KRS 202A.070 and 202A.080.
Your specific question is whether KRS 202A.085 obligates either the commonwealth's attorney or county attorney to act as counsel or legal representative for the petitioning party in such proceedings for involuntary hospitalization of an individual.
Throughout these statutes relating to involuntary hospitalization runs the uniform provision that the court hearing may be conducted in an informal manner and that respondent shall be represented by an attorney either retained by respondent or provided by the Commonwealth. There is no reference as to what precise role the commonwealth's attorney or county attorney shall play, except for that depicted in KRS 202A.085.
These proceedings under KRS Chapter 202A are mental inquests which are non-adversary in nature. KRS 202A.085. They are also civil in nature since the person deemed to be mentally ill is not charged with crime. However, in Cadden v. Commonwealth, Ky., 242 S.W.2d 409 (1951) 410, the court wrote that "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."
As to general civil duties, except in a judicial circuit containing a city of the first or second class or an urban county government, or in Franklin County, the commonwealth's attorney shall attend to all civil cases and proceedings in which the Commonwealth is interested in the circuit courts of his judicial circuit. KRS 69.010.
Again, as to general civil duties, under KRS 69.210 the county attorney's civil duties are restricted to the county, except that a county attorney serving in a county or urban county which is part of a judicial circuit containing a city of the first or second class or urban county government must attend all civil cases and proceedings in his county in which the Commonwealth is interested.
It is our opinion that, since KRS 202A.085 and 69.010 and 69.210 are repugnant to each other and are irreconcilable, the later statute, KRS 202A.085, governs. Commonwealth v. Hallahan, Ky., 391 S.W.2d 378 (1965). Thus if the involuntary hospitalization procedure is conducted in the circuit court, the commonwealth's attorney must attend to represent the Commonwealth and to assist the court in its inquiry by presentation of evidence. If the proceeding is held in district court, the county attorney must represent the interest of the Commonwealth and assist the court in its inquiry by presentation of evidence.
Neither the commonwealth's attorney nor county attorney, in our opinion, has the responsibility to act as counsel or legal representative for the petitioning party. Since the proceeding is informal and non-adversary in form, and is of civil nature, neither the commonwealth's attorney nor county attorney is required to "prosecute." Cf. KRS 15.725, relating to the criminal duties of the commonwealth's attorney and county attorney. See OAG 77-350, copy enclosed.
The commonwealth's attorney or county attorney, depending upon the court [district or circuit] in which the proceeding is being conducted, must represent the Commonwealth, not the petitioner, and assist the court in the informal inquiry by presenting any relevant evidence. The related statute, KRS 203.014, as amended by H.B. 99 [Ch. 20; 1978 Acts, § 2], describes a menaal inquest under Chapter 203 as being nonadversary in nature, but in which the Commonwealth has an interest in ensuring that the proceedings are properly and expeditiously conducted for the benefit and protection of both the defendant and society.
Footnotes
Footnotes
1 Under KRS 202A.070, as amended by S.B. 288 [Ch. 334, 1978 Acts, Section 1(2)], when no circuit judge is available in the county, the district judge may do all things necessary to accomplish the purposes of KRS Chapters 202A, 202B, 203 and 210.