Request By:
Mr. Martin Z. Kasdan, Jr.
Office of the Counsel
Department for Human Resources
Frankfort, Kentucky 40621
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
From July 27, 1977, to February 14, 1978, 39 cases were filed in Pulaski Circuit Court by DHR, seeking adjudications of civil incompetency under KRS Chapter 203. Some of these cases still remain on the court docket. Your office has requested the Pulaski Commonwealth's Attorney to complete the remaining cases, in view of the 1978 amendment of KRS 203.014. He has declined, based on a belief that it would involve a conflict of interests.
Your question: Who has the responsibility to process these cases? The answer is that the commonwealth's attorney has such responsibility.
The next question: Does the assumption of that duty by the commonwealth's attorney involve a conflict of interests? The answer is "no".
Since 1928 the circuit court has had exclusive jurisdiction of mental inquests [Carroll's K.S. Sec. 216aa-68]; and the responsibility for processing these cases has been placed on the commonwealth's attorney [Carroll's K.S. 216aa-71]. The latter statute provided that the court appoint a member of the bar to represent the person alleged to be of an unsound mind, and the commonwealth's attorney had the duty to prevent the finding of any person to be of unsound mind who, in his opinion, is not such. Thus Carroll's K.S. Sec. 216aa-71 later was codified as KRS 202.050, and still later as KRS 203.014. But the language of the statute remained essentially the same. Significantly, during the period 1928 to 1978, the commonwealth's attorneys of Kentucky, in practicing these cases, apparently understood that the statute required them to help process mental inquests, not as an attorney for the persons who petition for a determination of incompetency, but as the commonwealth's attorney, aiding the court as the attorney for the commonwealth.
It is true that in 1978 the legislature amended KRS 203.014 by emphasizing that mental inquests are non-adversary in nature, and that the Commonwealth has an interest in the proper and fair conducting of such restrictive procedure. It also provides that the court shall appoint a member of the bar to represent the defendant, and the commonwealth's attorney shall represent the Commonwealth and assist the court in its inquiry by the presentation of evidence, and shall also prevent the finding of incompetency where, in his opinion, incompetency is not made out.
The critical point, in terms of the statutory history and language change of the statute as concerns the duty of the commonwealth's attorney in such cases, is that the duty of the commonwealth's attorney and his representation of the Commonwealth, and not of the petitioner, has from 1928 to this day remained unchanged. It is true that KRS 203.014 embellishes the original concept as to the nature of the proceedings and the commonwealth's attorney's representation of the state. But the embellishment in no way changed the original concept and nature of that duty and representation.
In Sabin v. Commonwealth, 233 Ky. 636, 26 S.W.2d 506 (1930) 509, the court observed that mental inquests involve personal restraint on liberty, and to that extent they are regarded as quasi-criminal proceedings.
The nature of mental inquests was described in Cadden v. Commonwealth, Ky., 242 S.W.2d 409 (1951) 410, as follows:
"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 involves the element of personal liberty, it has been regarded as a quasi criminal proceeding.. Sabin v. Commonwealth, 233 Ky. 636, 26 S.W.2d 506."
Elsewhere in Cadden, above, page 411, this was written:
"Though a special proceeding - neither wholly civil nor wholly criminal - we think a party has the right to attack any judgment as being void by a petition filed in the court which rendered it."
The above cases just cited are in harmony with the legislative declarations as to the duties of the commonwealth's attorney and his representation of the Commonwealth. See OAG 78-650 and 79-256, of related interest.
The history of this legislation and the above appellate cases reflect that since 1928 to the present there is no conflict of interests in these proceedings as relates to the commonwealth's attorney. As we said, he is not the attorney for the petitioner. He is the attorney for the Commonwealth, as his constitutional title implies. By law he is required to pursue justice, the truth, and a human regard for the interests of the defendant and the Commonwealth. There is no conflicting role in that.
In summary, the commonwealth's attorney of that circuit court has the duty to process, as the commonwealth's attorney, incompetency proceedings, including those filed before the 1978 amendment of KRS 203.014. Such a duty does not involve a conflict of interests.