The Kentucky Supreme Court held earlier this year that a writ of prohibition was not an appropriate remedy to challenge a County Attorney’s use of documents incorrectly purporting to originate from a court to require persons named in a criminal complaint but not yet charged to attend a mediation prior to issuance of a warrant or summons.
In Minix v. Roberts, 350 S.W.3d 449 (Ky. 2011), the Court, while expressly disapproving of the practice, said relief by way of prohibition was not available to require the County Attorney to cease using emblems of the Court of Justice to require potential misdemeanants to attend mediation sessions, since a County Attorney is not a judicial officer. The Court suggested that the proper procedure to challenge such a practice would be to seek an injunction or file a declaratory judgment action. The Court concluded the opinion with a warning that the County Attorney should cease using judicial images on documents relating to the pre-warrant mediation program.
Conversely, there have been several reported Kentucky cases over the years in which the extraordinary writ of mandamus (which seeks to compel performance of an action, as opposed to a writ of prohibition, which asks that action be forbidden) has been held appropriate to compel action by nonjudicial officers. In County of Harlan v. Appalachian Regional Healthcare, Inc., 85 S.W.3d 607 (Ky. 2002), a hospital sought a court order requiring a county jailer to pay for necessary medical treatment for indigent prisoners. The Supreme Court, in a 4-3 opinion, issued a writ requiring the jailer to seek indigency determinations for inmates in need of medical attention. The case held that courts have authority to compel public officials to perform a ministerial act (as opposed to reaching a particular result from a discretionary decision) or mandatory duty. The Court stated that “mandamus will lie where a statute imposes on a public officer a specific duty which he fails or refuses to perform because of an erroneous conclusion by him as to his responsibilities.” Id. at 613.
Likewise, in Humana of Kentucky, Inc. v. NKC Hospitals, Inc.,751 S.W.2d 369 (Ky. 1988), the Court held that mandamus is an appropriate remedy to compel an administrative agency to adjudicate on a subject within its jurisdiction if it neglects or refuses to do so, citing O’Bannon v. Aetna Cas. & Surety Co., 678 S.W.2d 390 (Ky. 1984), and Shelton v. Simpson, 441 S.W.2d 421 (Ky. 1969). The Humana v. NKC case involved a claim by a hospital that a competitor was improperly operating without a Certificate of Need (“CON”) and that a state agency was obligated to take action to shut the competitor down unless and until it obtained proper certification.
Other cases in which mandamus was used to compel official action include Stratford v. Crossman, 655 S.W.2d 500 (Ky. 1983) (compelling city zoning officials to fulfill the functions of their offices to abate a zoning violation); and Broadway National Bank v. Hargis, 38 S.W.2d 674 (Ky. 1931) (finding that mandamus was an appropriate procedure to compel a county treasurer to pay the county’s financial obligations).
Stratford v. Crossman, citing Fiscal Court of Cumberland County v. Board of Education of Cumberland County, 230 S.W. 57 (Ky. 1921), held that the considerations applicable to this type of mandamus case are whether there is a ministerial duty imposed on a public official; whether the petitioner has a legal right that the public official has a duty to protect; whether the petitioner has no other adequate remedy; and whether the circumstances justify issuance of a writ.
David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc
Subscribe to the DBL Civil Litigation blog.
« Back to newsSubscribe
