Request By:
Hon. Irv Maze
County Attorney, Jefferson County, Kentucky
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Ken W. Riggs, Assistant Attorney General
Opinion of the Attorney General
The Hon. Irv Maze, County Attorney for Jefferson County, Kentucky, has requested the opinion of the Attorney General as to the extent of the County Attorney's right to be present and to participate in criminal proceedings pending before the District Court of his county. Mr. Maze believes that he is entitled to participate in the proceedings whenever a pending criminal case is called in open court and taken up by the presiding District Court Judge after the case has been conferenced with the County Attorney. Mr. Maze relayed that it was common practice for criminal cases to proceed in the District Court with only the judge and defense attorney present. The Attorney General agrees with Mr. Maze that the County attorney has a right and obligation to be heard in all criminal cases in the District Court of the county which forms his jurisdiction.
It is not the whim of the County Attorney that brings him to the District Court to prosecute criminal offenses, but rather a statutory obligation. KRS 15.725(2) provides:
The county attorney shall attend the District Court in his county and prosecute all violations whether by adults or juveniles subject to the jurisdiction of the regular or juvenile session of the District Court of criminal and penal laws, except as provided in Chapter 131 1, within the jurisdiction of said District Court.
Thus, the executive office 2 of the County Attorney is obligated to prosecute all criminal cases within the jurisdiction of the District Court, and it is within that jurisdiction that the County Attorney exercises his prosecutorial discretion.
In the realm of a District Court prosecution, the Commonwealth of Kentucky, and its citizens, is only represented by the County Attorney. Thus, pure logic dictates that when a criminal case is called in open court, the County Attorney has a right to be present and to be heard. Indeed, to proceed otherwise is to conduct court business in the absence of a necessary party.
No other person in the courtroom can substitute for the County Attorney or his assistants. For instance, the court certainly cannot be placed in the position of representing the interests of the Commonwealth and its citizens in an adversarial proceeding. It is patently improper for the trial court to assume the role of the prosecutor in a criminal action. LeGrande v. Commonwealth, 494 S.W.2d 726 (Ky. 1973).
As the Kentucky Supreme Court has stated "[t]he judge does not represent the state any more than he does the defendant in the prosecution." Hoskins v. Maricle, 150 S.W.3d 1, 14 (Ky. 2004). Also, the power of the court cannot overlap that of the County Attorney in his prosecutorial role. For instance, the District Court cannot dismiss or amend a complaint on its own initiative. Commonwealth v. Isham, 98 S.W.3d 59 (Ky. 2003).
The District Court does have the power to control the decorum of its courtroom, so long as the rights of parties are not denied. The court certainly has the power to conduct criminal trials, adjudicate guilt, and pass sentence. Hoskins, 150 S.W.3d at 12.
There is no justifiable reason for any District Court to deny the County Attorney, a statutorily obligated prosecutor, the right to be present in the courtroom when a criminal case within his jurisdiction is called on the docket. Furthermore, to refuse to allow the County Attorney to participate in the criminal prosecution in open court is an affront to the Office of the County Attorney as well as to the citizens of the Commonwealth with whose voice he speaks. Refusing to allow the County Attorney to adequately and fully discharge his executive duties to prosecute crimes is a violation of the doctrine of separation of powers. While the trial court may control the flow and decorum of his courtroom, he may not do so at the cost of denying a necessary party his right to be present and heard. No consideration, certainly not judicial economy, can justify such denial.
In sum, it is the opinion of the Attorney General that the County Attorney, when acting as a criminal prosecutor in District Court, has the right to be present when his cases are called in open court, and has a right to be heard inherent in his statutory duty to prosecute penal offenses.
Footnotes
Footnotes
1 Kentucky Revised Statutes Chapter 131 concerns the Department of Revenue.
2 The Executive Branch of our government is charged with seeing that the laws of the Commonwealth are faithfully executed. see Kentucky Constitution § 81.
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