IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS 

OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER 

CASE IN ANY COURT OF THIS STATE; HOWEVER, 

UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR 

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED 

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE 

BEFORE THE COURT. OPINIONS CITED FOR 

CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN 

UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A 

COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG 

WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO 

THE ACTION. 
RENDERED: JUNE 15, 2023

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2022-SC-0365-MR

M. L. S. APPELLANT 

V. 

ON APPEAL FROM COURT OF APPEALS

NO. 2022-CA-0651

JEFFERSON CIRCUIT COURT

NOS. 20-F-009095, 22-H-000405 & 22-H-000405-001

HONORABLE BRIAN C. EDWARDS, 

JUDGE, JEFFERSON CIRCUIT COURT

APPELLEE 

AND

COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST/

APPELLEE 

MEMORANDUM OPINION OF THE COURT

AFFIRMING

M.L.S. appeals to this Court from the Court of Appeals’ denial of a writ to 

prohibit the Jefferson Circuit Court from proceeding with the Commonwealth’s 

petition to involuntarily commit M.L.S. The underlying basis of the relief 

sought by M.L.S. is that recently enacted KRS1 Chapter 202C, codifying the 

commitment process, is unconstitutional. This Court recently considered the 

same constitutional arguments raised by M.L.S. in another writ case.2 We 

1 Kentucky Revised Statutes.

2 In September 2022, this Court heard oral argument in the combined cases of 

G. P. v. Hon Angela McCormick Bisig, Judge, Jefferson Circuit Court, Div. 10., and 

Commonwealth of Kentucky, Case No. 2022-SC-0011-MR; and C.M. v. Hon Annie 

O’Connell, Judge, Jefferson Circuit Court, Div. 2, and Commonwealth of Kentucky, Case 
2

concluded that the petitioners in that case, G.P. v. Bisig,

3 had an adequate 

remedy available by appeal and affirmed the Court of Appeals’ denial of a writ

of prohibition. We likewise conclude M.L.S. has an adequate remedy by appeal 

and affirm the Court of Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

M.L.S. was charged in Jefferson District Court with assault in the first 

degree. Defense counsel moved for an evaluation to determine whether M.L.S.

was competent to stand trial. After M.L.S. was examined at the Kentucky 

Correctional Psychiatric Center (KCPC), the Jefferson District Court held a 

competency hearing. The District Court found M.L.S. incompetent but that 

there was a substantial probability the M.L.S. might regain competency in the 

foreseeable future. Pursuant to KRS 504.110, the District Court ordered 

M.L.S. to return to KCPC for treatment for an additional 60 days, unless she 

was found competent to stand trial within that period.

In March 2022, the Jefferson District Court found M.L.S. incompetent 

and unlikely to regain competency in the foreseeable future. On the same date, 

the Commonwealth filed a petition in Jefferson Circuit Court for M.L.S.’s 

involuntary hospitalization pursuant to KRS Chapter 202C,4 codifying House 

Bill 310 which had been signed into law on April 1, 2021. Defense counsel 

No. 2022-SC-0125-MR. The Court rendered its decision in October 2022, a few days 

after M.L.S. filed the instant appeal. M.L.S. noted that her appeal raised the same 

issues before the Court in those two cases.

3 655 S.W.3d 128 (Ky. 2022).

4 Id. at 129-30 (describing the involuntary commitment process).
3

filed objections and moved the circuit court to hold House Bill 310 

unconstitutional. After oral argument, the Jefferson Circuit Court denied the 

motion.

In June 2022, M.L.S. sought a second-class writ of prohibition from the 

Court of Appeals asserting that the Jefferson Circuit Court erred by failing to 

find House Bill 310 unconstitutional and requested that the Court of Appeals 

enter a writ prohibiting the trial court from proceeding with the 

Commonwealth’s petition to involuntarily commit M.L.S. The Court of Appeals 

denied the petition because M.L.S. failed to show a lack of adequate remedy by 

appeal or otherwise. This appeal followed.

ANALYSIS

M.L.S. asserts that KRS 202C is unconstitutional for various reasons, 

including 1) the General Assembly did not comply with Kentucky constitutional 

requirements for legislative procedure in passing House Bill 310; 2) KRS 202C 

applies retroactively in violation of KRS 446.080 and KRS 446.110; and 3) KRS 

202C does not afford incompetent defendants adequate due process protection. 

M.L.S. seeks a writ of the second class, arguing that the circuit court is acting 

erroneously; that a direct appeal cannot redress the injury created by litigating 

her case in unconstitutional proceedings, i.e., her injuries include being forced 

to participate in the proceedings and “run the gauntlet” and potentially suffer a 
4

loss of liberty before an appeal may taken; and that the special case exception 

applies.

5

As noted above, we recently addressed the same issues and argument in 

Bisig for defendants who, like M.L.S., petitioned for a writ of prohibition at the 

Court of Appeals before an ultimate determination of commitment was made by 

the trial court, but after being confined following the initiation of KRS 202C 

proceedings. Because M.L.S. is similarly situated to the Bisig petitioners and 

presents the same issues and allegations of harm, we adopt this Court’s 

opinion in Bisig and incorporate it herein by reference.

In sum, “[a] writ may not be used as a substitute for appeal or to 

circumvent normal appellate procedure.”6 “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.”7 Here, if the trial court enters a final 

commitment order, M.L.S. may seek redress of her injuries on appeal, and 

pursuant to KRS 202C.110, may also petition for a writ of habeas corpus to 

question the cause and legality of the detention and request that the court 

issue a writ for release.8

CONCLUSION

5 See id. at 131.

6 Lawson v. Woeste, 603 S.W.3d 266, 276 (Ky. 2020) (citing Nat’l Gypsum Co. v. 

Corns, 736 S.W.2d 325 (Ky. 1987); and Merrick v. Smith, 347 S.W.2d 537 (Ky. 1961)).

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

1993) (citation omitted).

8 Id. at 130-32.
5

Because M.L.S. has an adequate remedy by appeal to redress her 

allegations of injury, we affirm the Court of Appeals’ denial of a writ of 

prohibition. 

All sitting. All concur. 

COUNSEL FOR APPELLANT:

Elizabeth B. McMahon

Leo Gerard Smith

Louisville Metro Public Defender’s Office

COUNSEL FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky 

Michael Robert Wajda

Assistant Solicitor General