Could a Kentucky District Court hear a criminal case without allowing the county attorney to participate?

Plain-English summary

Jefferson County's county attorney asked whether he could be present and participate whenever a criminal case within his District Court jurisdiction was called in open court. The Attorney General said yes. KRS 15.725(2) required the county attorney to attend District Court and prosecute the criminal and penal matters within that court's jurisdiction. The AG concluded that the duty carried a right to be heard in those proceedings; a judge and defense lawyer could not conduct the prosecution without the Commonwealth's prosecuting representative.

The opinion recognized the District Court's authority to control courtroom flow and decorum, conduct trials, decide guilt, and impose sentence. It said that authority did not permit denying the prosecutor a presence and voice in a criminal case the county attorney was charged with prosecuting.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could a judge proceed with a district criminal case without hearing the county attorney? A: The AG said the county attorney had a right to be present and heard when a criminal case within the office's jurisdiction was called in open court.

Q: Why did the county attorney have that right?
A: The opinion tied it to KRS 15.725(2)'s duty to attend District Court and prosecute criminal and penal violations there.

Q: Could the judge still manage the courtroom?
A: Yes. The AG recognized the court's power to control courtroom flow and decorum, while holding that it could not eliminate the prosecutor's participation in the case.

Q: Did the opinion say the prosecutor controlled the judge's decision? A: No. It distinguished the prosecutor's role from the court's power to adjudicate guilt and sentence.

Background and statutory framework

KRS 15.725(2) said the county attorney “shall attend the District Court in his county and prosecute all violations” within the statute's stated scope and exceptions. The AG treated the Commonwealth as a necessary party in those criminal proceedings and concluded that excluding its prosecutor would conflict with the statutory duty and separation of powers.

Citations and references

Statute: KRS 15.725(2).

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_db68d1f4-0c83-4572-b519-145aed4db4aa/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_db68d1f4-0c83-4572-b519-145aed4db4aa

Original opinion text

OAG 07-003
May 8, 2007
Subject:

The right of the County Attorney to actively participate in court proceedings involving the prosecution of offenses in District Court.

Requested by:

Hon. Irv Maze
County Attorney, Jefferson County, Kentucky

Written by:

Ken. W. Riggs
Assistant Attorney General

Syllabus:

The County Attorney has a duty to prosecute all criminal cases in the District Court, and inherent in that duty is a right to be present and heard in all court proceedings conducted that involve criminal prosecution in the District Court.

Statutes construed:

KRS 15.725(2)

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

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Page 2

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 office2 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 1 1 Kentucky Revised Statutes Chapter 131 concerns the Department of Revenue.

2
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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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.

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Gregory D. Stumbo
Attorney General

Ken W. Riggs
Assistant Attorney General