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, 

JUDGE, JEFFERSON CIRCUIT COURT DIV. 

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APPELLEE

AND 

COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST

AND

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, 

JEFFERSON CIRCUIT COURT DIV. 2

APPELLEE

AND 

COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST

OPINION OF THE COURT BY JUSTICE KELLER

AFFIRMING
2

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, 
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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. 
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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.
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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, 
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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 . . . 
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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 
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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