Request By:
Ms. Romana P. Short
Deputy Clerk
Lawrence County Circuit Clerk
Courthouse
P.O. Box 212
Louisa, Kentucky 41230
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The following questions involving criminal cases in district court were raised in your letter for our opinion:
When a county attorney voluntarily or by affidavit is removed from prosecuting a case, whose responsibility is it to acquire a special prosecutor to prosecute the case, the county attorney or the circuit clerk's office? Also, in district court matters, whose responsibility is it to subpoena witnesses into court on trial dates for traffic, misdemeanor, and felony cases, and for detention and adjudication dates in juvenile cases, the county attorney or the circuit court clerk's office?
Under KRS 15.725(2) the county attorney is required to attend the district court in his county and prosecute all violations of criminal and penal laws within the jurisdiction of said district court.
Pursuant to KRS 15.725(3), the commonwealth's attorney and the county attorney must cooperate in the enforcement of criminal and penal laws of the Commonwealth. When necessary, the commonwealth's attorney and county attorney must assist each other in prosecution within their respective courts. Thus where the county attorney is removed from prosecuting a particular case in district court, the commonwealth's attorney of his county may be called upon by the county attorney to prosecute the case in question. If for any valid reason the local commonwealth's attorney cannot prosecute the case, the county attorney of such county may call upon the Attorney General, under KRS 15.730, to designate a county attorney or commonwealth's attorney, from any county, as a special prosecutor of the Commonwealth in the case in question. KRS 15.730 reads:
"Each regular commonwealth's attorney and county attorney shall be, ex officio, a special prosecutor of the Commonwealth, and as such shall perform such duties and render such services, at such time and places, coextensive with the Commonwealth as may be required by the attorney general. The duties and services may include, but are not limited to, prosecution of or participation in action outside of his judicial circuit or judicial district when directed by the attorney general and assisting the attorney general in preparation and presentation of the Commonwealth's position in criminal cases appealed to circuit court, Court of Appeals, and the Supreme Court."
The Supreme Court of Kentucky, in Commonwealth, ex rel. Stumbo v. Wilson, Ky., 622 S.W.2d 912 (1981), wrote this on page 914 concerning the unified and integrated prosecutorial system of Kentucky:
"To encourage cooperation among law enforcement officers and to provide for the general supervision of criminal justice by the Attorney General as chief law enforcement officer of the Commonwealth and in order to maintain uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the Commonwealth, a unified and integrated prosecutor system was enacted by the 1976 Extraordinary Session of the Kentucky General Assembly. The Attorney General is the chief law officer of this Commonwealth (KRS 15.020), and as such, he may appoint special attorneys as he deems necessary to transact the business of the Commonwealth (KRS 15.100). He is authorized to intervene in criminal prosecutions (KRS 15.715); to appoint Commonwealth's Attorneys and County Attorneys as special prosecutors (KRS 15.730, 15.205); to assign a prosecutor where one has become disqualified to act (KRS 15.735); to assist in criminal proceedings on request of local prosecuting officers (KRS 15.190); and to intervene or direct criminal proceedings on request of the Governor, court, or grand jury (KRS 15.200). Likewise, the Department can hire its own prosecutors (KRS 407.190; 407. 250(3))."
The Supreme Court, in Commonwealth v. Wilson, above, concluded by holding that the District Judge of Estill County was directed to hear and determine any and all paternity actions now pending before him, or that may thereafter come before him, "in which the prosecutor may be a person other than the county attorney of Estill County." (Emphasis added).
In your factual situation, the local county attorney has the usual and ordinary burden of prosecuting the criminal case in the district court. If the county attorney pursuant to KRS 15.730, and 15.735, and pursuant to KRS 15.733(4), disqualifies himself from a prosecution, or where the court disqualifies him, under KRS 15.733(3), he must certify such fact of disqualification in writing to the attorney general, who may then direct a commonwealth's attorney or another county attorney or an assistant attorney general to represent the Commonwealth in that proceeding. The county attorney who is disqualfied should, prior to presenting his written certification of disqualification to the attorney general, tentatively arrange, with another county attorney or a commonwealth's attorney, for such county or commonwealth's attorney to serve as special prosecutor in the case, subject to the attorney general's directive to a specifically named commonwealth's attorney or county attorney or an assistant attorney general to so serve as special prosecutor in the district court criminal case after written certification of disqualification has been lodged with the attorney general. Under KRS 15.735, a county attorney or commonwealth's attorney cannot legally serve as a special prosecutor in the case unless and until he receives an administrative order of the attorney general directing him to so proceed as a special prosecutor in the particular case. Note also KRS 15.715, wherein under certain circumstances of disqualification of the local prosecutor, the Prosecutors Advisory Council may authorize the attorney general to intervene or supersede the local prosecutor in a particular local criminal proceeding in a circuit or district court after due notice to the local prosecutor. See that statute for details.
Let us suppose that the local county attorney fails to take the initiative in getting a prosecutor for the case, then under KRS 15.200, the local court, inter alia, may request the attorney general to intervene in the case. However, under KRS 15.205, where the attorney general has been asked to intervene pursuant to KRS 15.200, the attorney general may, at his own discretion, direct that the commonwealth's attorney or county attorney from another circuit or district participate in the case as a special prosecutor for the Commonwealth. See also KRS 15.190, where a county attorney may seek the assistance of the attorney general.
It is our opinion that the local county attorney has the initial burden of pursuing one of the options relating to another prosecutor, as outlined above. Where he fails to act or is unsuccessful in pursuing an option, then request for attorney general intervention under KRS 15.200 could then apply.
In addition to the above options, the chief judge of the district court may, under KRS 69.060, appoint a suitable attorney to act as county attorney in the particular case.
As relates to the second question, concerning the responsibility for subpoenas for witnesses to appear in court on the trial date and for detention and adjudication in juvenile cases, the county attorney must attend the district court in his county and prosecute all violations of criminal and penal laws within the jurisdiction of that court. See KRS 15.725(2). Inherent in such duty is the duty to prepare complaints, warrants of arrest, affidavits for search warrants, search warrants, and subpoenas for his witnesses. See also KRS 15.715(5), which reads:
"Whenever the attorney general shall under-take any of the actions prescribed in this section, he shall be authorized to exercise all powers and perform all duties in respect to such criminal actions or proceedings which the prosecuting attorney would otherwise perform or exercise, including, but not limited to, the authority to sign, file, and present any and all complaints, affidavits, information, presentments, accusations, indictments, subpoenas and processes of any kind, and to appear before all grand juries, courts, or tribunals." (Emphasis added).
The latter statute clearly indicates the legislative policy concerning the expected duties of a prosecuting attorney, including the preparation of subpoenas. While the county attorney or special prosecutor in district court must prepare the subpoenas, the circuit clerk has the duty to sign and issue the subpoenas and put them in the hands of peace officers empowered to serve process, usually the county sheriff. See KRS 30A.140. Under CR 7.02(1), the subpoena shall be issued by the clerk. The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall fill in the blanks before it is served. The best procedure is for the district court prosecutor to fill out the subpoena form indicating the name of the court and title of the proceeding, and the specifically named persons whose attendance and testimony are desired by the prosecutor at the time and place indicated therein. See CR 7.02 for further details. The Commonwealth is under no duty to produce witnesses for a defendant in a criminal case.
Sykes v. Com., Ky., 553 S.W.2d 44 (1977).
We hope these delineations of respective responsibilities of the prosecutor and of the clerk will be helpful.