in Adult and Juvenile Cases
I. Introduction: Why Writs?
One of the hallmarks of a successful attorney is that she realizes that there are many avenues of relief from unfair judicial decisions. In much the same way as a chess player will think several moves ahead to decide which move is most likely to lead ultimately to victory, a good lawyer will constantly try to anticipate the judge's decision on every issue, and to figure how to deal with that decision when it causes injustice for the client. Typically, this means properly preserving the error for appeal hence the need for a manual on preservation.
But what about those decisions that cannot be "fixed" on appeal? For example, an appeal cannot truly correct an improper pretrial decision to admit confidential records into evidence - by the time the appeal is heard, the records will have been permanently placed in the public domain, and the damage will have been done. Likewise, other decisions, such as a decision by the Department of Juvenile Justice to revoke a client's supervised placement, simply do not have a formal appeal as an option. In those situations, what does an attorney do then to protect the client's interests?
It is for dealing with just those situations that the common law writs emerged. Generally referred to as "extraordinary" writs, these actions developed as a means to correct administrative and judicial decisions that, for one reason or another, could not be dealt with through the ordinary appeals process. While these writs might be rare, when they are properly used they can be a potent tool to prevent injustice. Consequently, knowing when writs can win cases, and understanding the process for using those writs, is an essential part of an attorney's arsenal.
II. What is a Writ?
(A) The common law writs are civil actions against judges or other persons and are analogous to injunction actions against private parties.
(B) Under current law, these actions are properly referred to as "original actions," although courts continue to use the language of common law writs.
(C) Under current law, the following extraordinary actions are available:
(b) CR 81 against district court judges;
(c) RCr 4.43(2) and KRS Chapter 419 only for purposes of complaining
about "the action of a district court respecting bail."
(3) Where there is no statutory provision for appealing a decision of an administrative body, such actions can be maintained under CR 81.
III. Types of Actions
The type of proceeding you use depends on the situation confronting the client.
(A) If you are asking the court to direct the actions of an inferior
court judge or an administrative agency, you must decide whether you want
relief in the nature of a "prohibition" of an order of "mandamus." CR 76.36
(rule for actions in Court of Appeals); CR 81 (rule for actions in circuit
(b) For prohibition the petitioner must show, depending on the circumstances,
(ii) To prohibit the Commonwealth from trying a defendant in violation of his double jeopardy rights. St. Clair v. Roark, Ky., 10 S.W.3d 482 (1999); McGinnis v. Wine, Ky., 959 S.W.2d 437 (1998). This circumstance includes preventing retrial where defendant was previously tried and acquitted in federal court, Benton v. Crittenden, Ky., 14 S.W.3d 1 (1999); as well as where retrial is ordered after a mistrial, where the defendant objected to the original mistrial. Grimes v. McAnulty, Ky., 957 S.W.2d 223 (1998).
(iii) To prohibit the court for requiring the defense to turn over a witness list. King v. Venters, Ky., 576 S.W.2d 721 (1980).
(iv) To prohibit the Commonwealth from trying a juvenile whose case was not properly transferred from the juvenile court. Johnson v. Bishop, Ky.App., 587 S.W.2d 284 (1979).
(v) To prohibit the trial court from enforcing an order compelling a party to sign an unrestricted medical authorization. Geary v. Shroering, Ky.App., 979 S.W.2d 134 (1998).
(2) Writ of Mandamus
(b) For mandamus the petitioner must show:
(ii) that there is no adequate remedy by way of appeal; and
(iii) that great harm or irreparable injury will result if the higher court does not require the judge to act. See Humana v. NKC Hospitals, Ky., 751 S.W.2d 369 (1988), and Southeastern United Medigroup v. Hughes, Ky., 952 S.W.2d 195 (1997).
(c) As with writs of prohibition, one is entitled to the writ for any circumstance which meets the test for mandamus stated above in part (b). Previous cases on mandamus have included the following:
(ii) To compel enforcement of a prior appellate court judgment. Ellis v. Jasmin, Ky., 968 S.W.2d 669 (1998).
(iii) To compel the trial court to return exculpatory evidence to the defendant for testing, where the evidence is of such a nature that it cannot be tested without destroying the evidence. McGregor v. Hines, Ky., 995 S.W.2d 384 (1999).
(iv) To compel the Department of Juvenile Justice to release a juvenile from active custody, when the Department took custody based on an erroneous decision to revoke the child's supervised placement. L.M. v. Kelly, Franklin Circuit Court, Civil Action No.: 99-CI-469.
(v) To compel the trial court to decide a dormant case or motion. Collier v. Conley, Ky., 386 S.W.2d 270 (1966) (holding that trial judge was required to decide dormant 11.42 motion).
(3) Hybrid Writs of "Prohibition and/or Mandamus"
(b) The test for determining whether to grant a "writ of mandamus and/or Prohibition" is basically the same as whether to grant a writ of prohibition.
(c) Though by no means required, many attorneys now style their writs as writs of "prohibition and/or mandamus" on the principle of "better safe than sorry."
(4) Writs against lower court judges are to be filed in the next highest court, regardless of the duration of the potential sentence. Thus, a writ to contest the decision of the circuit court is filed in the Court of Appeals, a writ to contest the decision of the district court is filed in the circuit court, etc.
(5) Writs against administrative agencies are filed in the circuit court of the county where the agency is located (generally, Franklin Circuit Court).
(B) Habeas Corpus and RCr 4.43 appeals
(2) Under KRS Chapter 419, the authorized relief is release from custody. KRS 419.130(2).
(3) Habeas corpus is designed to be an expedited proceeding of a summary nature, and therefore not appropriate for issues where there are factual disputes. Commonwealth v. Marcum, Ky., 873 S.W.2d 207 (1994); KRS 419.110(1)
(4) Habeas is appropriate under the following circumstances:
(b) To secure review of a district court's bail determination. RCr 4.43(2). However, if habeas corpus is the right procedural method to seek review of bail set by the district court, then the circuit court must also have the authority to modify pretrial release conditions. KRS 23A.080(2); RCr 4.43(2).
(c) Where the actions of the custodian are so absolute and arbitrary as to violate § 2 of the Kentucky Constitution. For example, where the Department of Corrections released a prisoner into the custody of Louisiana authorities, in clear violation of Kentucky law, the Supreme Court has held that the transfer "operated as a forfeiture of the Commonwealth of Kentucky's right to enforce completion of the sentence under which it was holding him at the time of transfer." Yost v. Smith, Ky., 862 S.W.2d 852, 854 (1993).
(d) To order release of a person incarcerated or institutionalized past the statutory time limits. Commonwealth v. Brown, 911 S.W.2d 279 (1995) (Habeas authorized to compel release of mental patient held longer than seven days without probable cause hearing). Also should apply to individuals held longer than 60 days without indictment. See RCr 5.22.
(5) Appealing the bail determination of the circuit court is properly done through an appeal to the Court of Appeals under RCr 4.43.
IV. Importance of a written order
(A) In general, you must always have a written order to complain
(2) You should not rely on oral decisions made on video or audio tape.
(b) It can be handwritten if necessary.
(3) Remember that in district court the docket sheet signed by the judge is the order of the court. RCr 11.04(4).
(B) If the court refuses to enter a written order, you should submit an affidavit with your writ setting forth the fact that you asked for a written ruling, and the court refused. As a practical matter, the higher court will rely on your assurances as a member of the bar, rather than force you to file a mandamus to compel the judge to render a decision.
V. Mechanics of Filing for Mandamus or Prohibition in the Court of Appeals
(A) In the Court of Appeals, CR 76.36 prescribes the procedure to follow.
(b) If you don't have time to get the affidavit or your client is not available, your representation in the motion that your client is indigent enough to rate appointed counsel in the circuit court is usually good enough. West v. Commonwealth, Ky., 887 S.W.2d 338 (1994).
(c) Tender an order with this motion.
(2) The format of the pleadings is described in CR 76.36(1).
(b) The Commonwealth of Kentucky is the Real Party in Interest. CR 76.36(8).
(c) Any codefendants who may be named in the indictment but who for any reason don't want to join should be accounted for in the text of the motion although it is not required by rule.
(3) CR 76.36(1)(b) only requires a recitation of facts by you. You should also try to obtain a videotape of the proceedings about which we are complaining.
(b) Pay particular heed to the last sentence of subsection (5) which
says categorically that oral testimony will not be heard in the appellate
(4) You must tell the Court exactly what you want it to do.
(5) The memorandum is usually a separate pleading although the rule does not demand it. If you have an uncomplicated case, there is no reason not to put everything in a single document. Write clear captions so the court will know that everything is there.
(6) Everything filed in the Court of Appeals goes in quintuplicate. (Original and 4 copies). [CR 76.36(3)].
(7) A copy of everything you file must be served on the judge and the real party in interest, the Commonwealth. Though it is not required, you are permitted to provide courtesy copies to non-parties (e.g. codefendants) when you think it would be to your advantage to do so.
(8) Depending on the time constraints, file the original and four (4)
copies of everything in one of the following ways:
(b) By delivery to that address by an investigator or yourself.
(c) By delivery to the local chambers of the Court of Appeals but only if you are going to be seeking immediate relief (i.e. a stay of the circuit court order) and only after getting the clerk of the court's O.K.
(9) Time for responses:
(b) If you mail service copies to either or both, the Court of Appeals tacks on the three mail days authorized by CR 6.05 so the Commonwealth's response is due 13 days after mailing.
(B) CR 76.36(4) allows you to seek "intermediate relief," usually a stay of the circuit judge's order if you need relief before the 10 day response period expires.
(2) Although it is not required in writ cases, it sometimes helps if you can show that you asked the circuit judge to reconsider. Consider RCr 12.82.
(3) To obtain relief, you must draft another pleading, filed in quintuplicate with the others and served on the judge and the Commonwealth, explaining why you need the relief.
(4) As a matter of selfinterest, we try to accommodate the Commonwealth so they will try to accommodate us in other cases but in all cases you must give notice.
(5) You must call the Clerk of the Court of Appeals (15025737920) in Frankfort and he will try to find a judge to hear this motion.
(6) The order of a single judge is only good until a threejudge panel can consider the motion for intermediate relief.
(C) Disposition of the Petition
(2) These panels meet twice a month but not at regular intervals so it is hard to say how long it will take.
(3) If the case is complicated or involves new or difficult issues of law the panel may work on it for several weeks before deciding.
(D) Appealing an Adverse Decision on the Writ.
(2) You must file notice of appeal in the Court of Appeals within 30 days of the decision.
(3) Within 30 days of the notice of appeal, you must file a statement
of appeal and a brief in Supreme Court. CR 76.36(7)(c).
(b) The requirements for the brief are found in CR 76.12.
(c) Be sure to serve the Clerk of the Court of Appeals with the statement of appeal. 76.36(d)
(4) You may want to ask an appeals attorney for help if you plan do go down this road.
(A) These actions are treated as ordinary civil actions in the circuit
court with a few exceptions.
(2) No process need issue. Stallard v. McDonald, Ky. App., 826 S.W.2d 840 (1992).
(3) Because this is a civil action, the Commonwealth will have twenty (20) days to file an answer.
(4) CR 76.01 says that Rule 76 "applies only to practice and procedure in the Court of Appeals and Supreme Court." Although we usually follow the CR 76.36 format of pleadings it is not necessary.
(B) Where to go
(2) If you are not seeking a stay, all you have to do is make sure that
the district judge and the county attorney are served.
(3) If the stay is denied, you can seek relief in the Court of Appeals. This is by means of a motion for discretionary review, CR 76.20 and an intermediate motion pursuant to CR 76.33.
(4) After the Commonwealth files its answer, the case proceeds as with
any other civil case.
(b) You can file a summary judgment motion. CR 56.
(c) In rare occasions you can ask for a bench trial, although this should be unnecessary if you have filed the audio tape from district court.
(5) If the Commonwealth does not respond, file a motion for default judgment under CR 55. CR 55.04 requires establishment of your client's right to relief in addition to mere failure to answer because the case involves the Commonwealth.
(6) If you lose, you must file a civil appeal which has several required steps right after the notice is filed. See an appellate attorney. (Keep in mind that CR 59, particularly CR 59.05, applies in a writ case and that the timely service, not filing, of a CR 59 motion stops the running of appeal time. CR 62.01.)
VII. Habeas Corpus
(A) It is a statutory action which means that its procedural requirements must be adhered to strictly. There are local procedural rules as well. CR 1(2).
(B) KRS 419.020 requires the following pleadings:
(2) An affidavit of probable cause executed by you or your client adopting the petition as grounds showing probable cause to believe that the detention is improper.
(3) A "writ" for the judge to sign, i.e. an order captioned "Writ of Habeas Corpus" for the judge to sign. This order directs the custodian to produce the prisoner for hearing at the time set by the judge in the order.
(C) KRS 419.060 requires personal service by hand delivery to that person.
(2) If you can't hand the papers to the custodian personally, KRS 419.060(3) allows you to leave the papers at his office.
(3) At some point the person effecting service must make a return notation to the file.
(D) Again, if a hearing on the writ itself can't be scheduled immediately, Section 109 and Smothers v. Lewis, supra, authorize you to ask for immediate release.
(E) Otherwise, the writ is disposed of at a summary bench trial at which evidence may be produced. Usually, if there is an audio tape of the district court proceedings this won't be necessary.
(F) If you lose, the case can be appealed to the Court of Appeals but the procedure is quite different from a normal appeal. The procedure in KRS 419.130(1) is mandatory. Two days before you file the "Notice of Appeal," you need to serve your opponents. It should be clear on the face of the "Notice of Appeal" that it is a habeas corpus case, or the Court of Appeals may inadvertently treat it as an ordinary civil case. Habeas appeals are assigned to the next available motion panel for resolution.
VIII. RCr 4.43 Appeals of Circuit Court Bail Decisions
(A) RCr 4.43 permits the Court of Appeals to review the bail decisions of the circuit court, and establishes an expedited process for doing so.
(B) Procedure under RCr 4.43.
(2) When the notice of appeal is filed, the clerk of the circuit court is to prepare and certify an appellate record, consisting of the portion of the court record which is relevant to the question of bail. The clerk is to transmit that record within 30 days of the notice of appeal. RCr 4.43(1)(b). As it is generally the responsibility of the party who has taken the appeal to ensure that the record is properly certified, you would be well advised to check with the clerk to ensure that appropriate progress is being made. The faster the record gets to the Court of Appeals, the faster the appeal will be decided.
(3) Within 15 days after the record is sent to the Court of Appeals, the appellant (i.e. your client) must file a brief with the Court of Appeals. The brief is to be no longer than five pages long, and must comply with the formatting requirements of CR 76.12. RCr 4.43.
(4) Oddly, RCr 4.43 also directs the appellant to file a statement of appeal "required by CR 76.06." RCr 76.06 has long since been repealed, however, and George Geohegan, Clerk of the Court of Appeals, advises that a statement of appeal is longer required.
(5) The Commonwealth has 10 days to file a brief, but is not required
to do so.
IX. Final Thoughts
Below is a list of significant recent writ cases. Reading through these cases, it is clear that writs have been used as a potent tool for dealing with those rare cases when an appeal just is not enough. That being the case, an attorney dealing with an adverse decision would be well advised to consider whether an appeal can return the client to where he was prior to that decision. If so, then the client will likely have to just wait it out. Regrettably, our system tolerates your client's incarceration much better than your client does. However, if the client will lose something that an appeal will come too late to restore, such as the ability to test a particular piece of evidence, or the confidentiality of a particular piece of information, then a writ might be the right course of action to take.
IMPORTANT WRIT CASES
Shumaker v. Paxton, Ky., 613 S.W.2d 130 (1981) - seminal prohibition case is always cited.
Haight v. Williamson, Ky., 833 S.W.2d 821 (1992) violation of constitutional rights, standing alone is insufficient.
Shobe v. EPI Corp., Ky., 815 S.W.2d 395 (1991) discovery orders generally not subject to writ.
Tipton v. Commonwealth, Ky. App., 770 S.W.2d 239 (1989) - Commonwealth may seek writ on non-final district court order because appeal not authorized.
Courier Journal & Times v. Peers, Ky., 747 S.W.2d 125 (1988) - news media may proceed by writ when press excluded from proceedings or court records.
FTP v. Courier Journal & Times, Ky., 774 S.W.2d 444 (1989) - juvenile may proceed by writ where confidentiality of juvenile court proceedings concerned.
Holbrook v. Knopf, Ky., 847 S.W.2d 52 (1993) - writ proper remedy where claim of unconstitutional blood test is made.
Angelluci v. Southern Bluegrass MH&R Center, Ky., 609 S.W.2d 928 (1980) - writ proper method to protect confidential psychiatric records.
Summitt v. Mudd, Ky., 679 S.W.2d 225 (1982) - appropriate remedy to force disqualification of prosecutor who formerly was P.D.
Summitt v. Hardin, Ky., 627 S.W.2d 580 (1982) - Habeas corpus case, witness held for contempt not released at end of trial writ granted.
Campbell v. Schroering, Ky. App., 763 S.W.2d 145 (1988) - circuit judge committed witness for contempt without representation of counsel prohibition granted.
Commonwealth v. Marcum, Ky., 873 S.W.2d 207 (1994) - habeas corpus is appropriate remedy where trial court judgment is a nullity, and other form of collateral attack is inadequate.
Petit v. Raikes, Ky., 858 S.W.2d 171 (1993) venue is not typically a writ issue.
Yost v. Smith, Ky., 862 S.W.2d 852, 854 (1993) - writ of habeas corpus will issue where custodians actions are "absolute and arbitrary" in violation of § 2 of the Kentucky Constitution.
Regency Pheasant Run L. v. Karem, Ky., 860 S.W.2d 755 (1993) may file original action to test validity of appointment of retired judge.
Volvo Car Corp. v. Hopkins, Ky., 860 S.W.2d 777 (1993) mandamus authorized in discovery case because of potential loss of evidence.
Appalachian Regional Health Care, Inc. v. Johnson, Ky., 862 S.W.2d 868 (1993) prohibition not granted because failed to show how confidentiality would be irreparably lost.
Blakeman v. Schneider, Ky., 864 S.W.2d 903 (1993) contempt is tested by original action.
Commonwealth v. Hughes, Ky., 873 S.W.2d 828 (1994) prohibition is in aid of appellate jurisdiction and therefore subject to dismissal for mootness where appeal impossible or not necessary.
Adventist Health Systems v. Trude, Ky., 880 S.W.2d 539 (1994); overruled on other grounds by Sisters of Charity Health Systems v. Raikes, Ky., 984 S.W.2d 464 (1999). lack of remedy by appeal is inflexible requirement.
Kuprion v. Fitzgerald, Ky., 885 S.W.2d 679 (1994) mandamus to challenge the constitutionality of Jefferson Circuit Family Court established by order of Chief Justice.
Wyatt, Tarrant & Combs v. Williams, Ky., 892 S.W.2d 584 (1995) Court of Appeals had no writ jurisdiction where party failed to pursue available appeal earlier.
Kmart Corp. v. Helton, Ky., 894 S.W.2d 630 (1995) mandamus/prohibition on question of discovery and attorney disqualification.
Abernathy v. Nicholson, Ky., 899 S.W.2d 85 (1995) party may pursue administrative writ only when no other relief available.
Potter v. Eli Lilly Co., Ky., 926 S.W.2d 449 (1996) prohibition dealing with postjudgment investigation of civil settlement proper because CR 60.02 not applicable.
McKinney v. Venters, Ky., 934 S.W.2d 241 (1996) prohibition sought to preclude destructive testing of evidence for DNA. Court holds that appeal after conviction is the appropriate remedy.
Lovell v. Winchester, Ky., 941 S.W.2d 466 (1997) mandamus to disqualify opposing counsel on ground of previous representation.
May v. Coleman, Ky., 945 S.W.2d 426 (1997) mandamus filed by prisoner to require judge to appoint "lay assistant" to help with civil action. Capable of evading review exception stated.
Owens Chevrolet v. Fowler, Clerk, Ky., 951 S.W.2d 580 (1997) mandamus to force clerk to accept filing sent by UPS which did not show date of mailing.
Southeastern United Medigroup Inc. v. Hughes, Ky., 952 S.W.2d 195 (1997) discussion of prohibition/mandamus remedies and confidential information. Appellate standard for law is de novo; for fact, abuse of discretion.
Grimes v. McAnulty, Ky., 957 S.W.2d 223 (1997) prohibition is appropriate remedy to prevent retrial in criminal case.
McGinnis v. Wine, Ky., 959 S.W.2d 437 (1998) double jeopardy case considered on writ of prohibition.
Commonwealth v. Miracle, Ky., 10 S.W.3d 117 (1999) - Commonwealth is entitled to writ to force disqualification of defense counsel.
St. Clair v. Roark, Ky., 10 S.W.3d 482 (1999) - double jeopardy can be litigated through a writ of prohibition, but the court is not required to grant a writ on double jeopardy grounds, where there is also an adequate remedy on appeal.
Commonwealth v. Ryan, Ky., 5 S.W.3d 113 (1999) - Commonwealth is entitled to writ of prohibition where trial court erroneously forbade consideration of death as a sentencing option.
Cavender v. Miller, Ky., 984 S.W.2d 848 (1998) - defendant is not entitled to a writ to gain access to police officer's notes prior to pretrial suppression hearing; defendant has adequate remedy on appeal.
University of Louisville v. Shake, Ky., 5 S.W.3d 107 (1999) - denying writ of mandamus to compel disqualification of opposing counsel where petitioner failed to show irreparable harm if counsel was permitted to continue on the case.
Ellis v. Jasmin, Ky., 968 S.W.2d 669 (1998) - Supreme Court issued mandamus against circuit court judge, to compel that judge to enforce an order of the Supreme Court.
Commonwealth v. Williams, Ky.App., 995 S.W.2d 400 (1999) - Commonwealth entitled to writ of prohibition to overturn judges decision to suppress evidence.
Geary v. Schroering, Ky.App., 979 S.W.2d 143 (1998) - writ of prohibition granted to prohibit enforcement of pretrial order compelling plaintiff in personal injury action from signing a blank medical authorization.
The author would like to thank David Niehaus of the Jefferson District Public Defender Office, whose outline forms the basis of this article.
Assistant Public Advocate
100 Fair Oaks Lane, Ste 302
Frankfort, KY 40601
Tel: (502) 564-8006 Fax: (502) 564-7890