G. P. v. Honorable Angela McCormick Bisig

• Court: Kentucky Supreme Court
• Decided: October 19, 2022
• Docket: 2022 SC 0011
• Status: Unknown

Opinion

RENDERED: OCTOBER 20, 2022 TO BE PUBLISHED

Supreme Court of Kentucky 2022-SC-0011-MR

G.P. APPELLANT

ON APPEAL FROM COURT OF APPEALS V. NO. 2021-CA-1174 JEFFERSON CIRCUIT COURT NO. 21-H-001138

HONORABLE ANGELA MCCORMICK BISIG, APPELLEE JUDGE, JEFFERSON CIRCUIT COURT DIV. 10

AND

COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST

2022-SC-0125-MR

C.M. APPELLANT

ON APPEAL FROM COURT OF APPEALS V. NO. 2021-CA-1468 JEFFERSON CIRCUIT COURT NO. 21-H-000611-001

HONORABLE ANNIE O’CONNELL, JUDGE, APPELLEE JEFFERSON CIRCUIT COURT DIV. 2

OPINION OF THE COURT BY JUSTICE KELLER

AFFIRMING In this Opinion, we consider appeals from the denial of two petitions for

writs of prohibition. These appeals are before us on allegations of the

unconstitutionality of recently-enacted Kentucky Revised Statute (KRS)

Chapter 202C, which creates a procedure for indefinite involuntary

commitment for incompetent criminal defendants. For the reasons stated

below, we affirm the Court of Appeals’ denial of both writ petitions.

I. BACKGROUND

On April 1, 2021, KRS 202C went into effect. The statutes were written to

close a perceived loophole in KRS 202A and 202B, the statutes governing

involuntary civil commitment. Under KRS 202A, a mentally ill person may be

involuntarily hospitalized if 1) they present a danger or threat of danger to self,

family, or others because of the mental illness, 2) they can reasonably benefit

from treatment, and 3) hospitalization is the least restrictive alternative. KRS

202A.026. KRS 202B requires the same criteria be met for involuntary

commitment of an intellectually disabled person, rather than a mentally ill

person. KRS 202B.040. Both KRS 202A and 202B require that an individual be

able to “reasonably benefit from treatment.” So, if a person is found to be

incapable of reasonably benefitting from treatment, then they are not eligible

for involuntary commitment under KRS 202A or 202B.

To create a process to involuntarily commit an incompetent criminal

defendant who cannot reasonably benefit from treatment, the legislature

passed House Bill (HB) 310, creating KRS 202C. KRS 202C only applies to

persons charged with “qualifying offenses,” which include capital offenses,

2 Class A felonies, Class B felonies resulting in death or serious physical injury,

First-Degree Rape, and First-Degree Sodomy. KRS 202C.010(12). If a defendant

is found incompetent to stand trial and unlikely to regain competency, then the

Commonwealth’s attorney’s office must file a Petition for Involuntary

Commitment under KRS 202C. KRS 202C.020(1). After this filing, the

defendant1 is appointed a guardian ad litem and defense counsel, if the

defendant does not already have counsel. KRS 202C.020(2). With these

representatives, the defendant must then appear for an adversarial evidentiary

hearing. KRS 202C.030. At that hearing, a judge must determine if the

defendant is guilty of the underlying crime by a preponderance of the evidence.

KRS 202C.030(3).

If the Commonwealth establishes guilt by a preponderance of the

evidence, then the defendant proceeds to a commitment hearing. KRS

202C.040. There, a fact finder must determine if the defendant meets the

following criteria:

(a) The respondent presents a danger to self or others as a result of his or her mental condition; (b) The respondent needs care, training, or treatment in order to mitigate or prevent substantial physical harm to self or others; (c) The respondent has a demonstrated history of criminal behavior that has endangered or caused injury to others or has a substantial history of involuntary hospitalizations under KRS Chapter 202A or 202B prior to the commission of the charged crime; and (d) A less restrictive alternative mode of treatment would endanger the safety of the respondent or others.

1 The defendant in the criminal action is the respondent in the civil commitment action.

3 KRS 202C.050. If each of these criteria is met, then the defendant is

involuntarily committed indefinitely at the Kentucky Correctional Psychiatric

Center (KCPC). The incompetent defendant may be discharged from this

indefinite commitment if and when he demonstrates that he no longer meets

the criteria set out above. KRS 202C.060.

When the writ petitions at issue here were filed, both G.P. and C.M. were

in the midst of KRS 202C proceedings, albeit at different stages.2 G.P. was

indicted in 2018 for one count of murder. After G.P. was found incompetent to

stand trial, the Commonwealth filed a Petition for Commitment under KRS

202C. C.M. was indicted for one count of first-degree rape (victim under 12

years of age), one count of first-degree assault, and one count of first-degree

robbery in 2019. As with G.P., after C.M. was found incompetent to stand trial,

the Commonwealth filed a Petition for Commitment for C.M. under KRS 202C.

G.P. and C.M. filed petitions for writs of prohibition at the Court of

Appeals requesting relief from the alleged unconstitutional process set out in

KRS 202C. They filed these writs before an ultimate determination on their

commitment was made by a trial court, but after being confined following the

initiation of KRS 202C proceedings. G.P. and C.M. asked that court, as they do

ours, to prohibit the KRS 202C process from continuing in each of their cases.

2 Because the details of their alleged crimes are largely irrelevant to the issue of their writ petitions, and out of respect for their anonymity, we do not discuss their backgrounds at length in this Opinion.

4 To the Court of Appeals, G.P. and C.M. each argued that the legislature

did not comply with Kentucky constitutional requirements for legislative

procedure in passing House Bill 310, which created KRS 202C. See KY. CONST.

§§ 46, 51. They further argued that KRS 202C applies retroactively, thus

violating KRS 446.080 and 446.110. Finally, both C.M. and G.P. argued that

KRS 202C violates a defendant’s due process rights by depriving him of a jury

of his peers as well as the “beyond a reasonable doubt” standard for guilt, and

by forcing an incompetent person to be tried on the facts of a case when he

cannot, by definition, assist in his own defense. In two separate opinions, the

Court of Appeals denied both writ petitions. The Court of Appeals reasoned

that G.P. and C.M. did not meet the criteria for writ relief because they each

have an adequate remedy by appeal. Both G.P. and C.M. appealed the denials

of relief to this Court, maintaining their arguments on appeal.

II. ANALYSIS

When a trial court acts within its jurisdiction, as in the underlying cases

at bar, this Court only grants writs of prohibition where 1) the petitioner has no

adequate remedy by appeal, and 2) the petitioner would suffer “great injustice

and irreparable injury” absent the relief sought. Avery v. Knopf, 807 S.W.2d 55,

55 (Ky. 1991) (quoting Shumaker v. Paxton, 613 S.W.2d 130, 131 (Ky. 1981)).

The second requirement may be set aside in “certain special cases . . . [where] a

substantial miscarriage of justice will result if the lower court is proceeding

erroneously, and correction of the error is necessary and appropriate in the

interest of orderly judicial administration.” Bender v. Eaton, 343 S.W.2d 799,

5 801 (Ky. 1961). Even under the special cases exception, however, this Court’s

precedent requires no adequate remedy by appeal. Id. (“[The] [t]est [for

irreparable injury], however, unlike [the test for adequate remedy by appeal], is

not an absolute prerequisite.”).

“In cases involving a claimed constitutional defect, as a general rule the

remedy of appeal is adequate and prohibition is not proper.” Graham v. Mills,

694 S.W.2d 698, 700 (Ky. 1985) (citations omitted); see also Avery, 807 S.W.2d

at 55; Harrod v. Meigs, 340 S.W.2d 601 (Ky. 1960). The basis for the relief

sought by both G.P. and C.M. is the alleged unconstitutionality of KRS 202C.

That statute provides an avenue for habeas relief following an official

determination of incompetence. Further, this Court sees no reason why a final

order demanding indefinite involuntary commitment could not itself be

appealed. Thus, G.P. and C.M. have failed to meet the criteria for writ relief

because there is an adequate remedy by appeal for their constitutional

arguments.

G.P. and C.M. argue that they do not have an adequate remedy by appeal

because the irreparable injury they allege stems from being forced to

participate in the process prescribed by KRS 202C itself. The petitioner in

Graham analogously argued that “she will suffer great injustice and irreparable

harm if she is forced to proceed to trial . . . and then it is later determined that

the Attorney General has no authority to prosecute.” Graham, 694 S.W.2d at

700. However, in that case, we held that “[h]er constitutional claim does not

cause her situation to be different than others claiming a defect in . . .

6 prosecution.” Id. Accordingly, we determined that she had an adequate remedy

by appeal. Id.

To support their argument that writ relief is appropriate, G.P. and C.M.

assert that the harm they allege is similar to being forced to undergo a trial in

violation of double jeopardy. See Dunn v. Maze, 485 S.W.3d 735, 741 (Ky.

2016). The petitioners’ reasoning for this alleged likeness stems from their

being committed while “waiting for a direct appeal,” or “waiting to appeal a final

commitment order.” This is a similar restriction on liberty to that suffered by a

criminal defendant incarcerated and appealing a conviction. Accordingly, it is

not similar to double jeopardy, but rather is the way the appellate process

works across any reviewing body after which an initial determination of

commitment is made. Furthermore, double jeopardy is different than the

alleged harm herein because the double jeopardy clause is an express

guarantee that a defendant will not be required to undergo a second trial on

the same crime. Id. If he is required to undergo that second trial, “these aspects

of the guarantee’s protections would be lost.” Abney v. United States, 431 U.S.

651, 662 (1977). There is no such loss of an express constitutional guarantee

that these defendants will endure if required to go through the KRS 202C

process and subsequently appeal.

Like the petitioner in Graham, G.P. and C.M. seek relief from a process

rather than a result. However, we decided in Graham that constitutional

challenges to statutory procedures should, generally, be brought by appeal.

G.P. and C.M., if they wish to challenge KRS 202C, may do so on appeal. To

7 reiterate: “Even in cases involving a claimed constitutional defect, it is generally

the law that the remedy of appeal is adequate and prohibition is not proper.”

Appalachian Reg’l Health Care, Inc. v. Johnson, 862 S.W.2d 868, 870 (Ky. 1993)

(citation omitted).

This is not to say, however, that G.P. and C.M.’s constitutional

arguments are without merit. Indeed, the issues raised in these matters are

serious and deserving of constitutional review. Under our caselaw, however,

that review cannot take place through writ relief.

III. CONCLUSION

For the foregoing reasons, we affirm the decision of the Court of Appeals

to deny both writ petitions.

All sitting. All concur.

COUNSEL FOR APPELLANTS, G.P. AND C.M.

Elizabeth B. McMahon Louisville Metro Public Defender’s Office

APPELLEES:

Hon. Angela McCormick Bisig

Hon. Annie O’Connell

COUNSEL FOR REAL PARTY IN INTEREST, COMMONWEALTH OF KENTUCKY:

Daniel Cameron Attorney General of Kentucky

Matthew F. Kuhn Brett R. Nolan Michael R. Wajda Office of the Solicitor General 8