Civil Procedure – local order prescribing objections during preliminary hearings, jurisdiction over judge’s local rule: Delahanty v. Commonwealth (COA 7/31/2009)

Delahanty v. Commonwealth
2008-CA-000580 07/31/2009 2009 WL 2341518

Opinion by Judge Thompson; Judges Acree and Taylor concurred.
The Court affirmed an order of the circuit court granting a writ prohibiting a district court judge from enforcing a verbal and written directive prohibiting the county attorney and his assistants from making objections to defense counsel’s questions during preliminary hearings to establish probable cause to detain a defendant pending indictment. The Court first held that the circuit court had jurisdiction to consider the writ pursuant to controlling precedent, CR 81, SCR 1.040(6) and KRS 23A.080(2). The Court next held that KRS 23A.080(2) was constitutional and did not impermissibly amend Section 112 of the Kentucky Constitution. The Court then held that summons was not required to be issued to commence the original action and to confer personal jurisdiction over the judge. The Court then held that the threat of contempt was a sufficient legal interest to confer standing on the county attorney. The Court ultimately held that the writ was properly issued as the directive preventing county attorneys from advocating on behalf of the Commonwealth without being subject to the penalty of contempt resulted in an irreparable injury without an adequate remedy by appeal. The Court rejected the argument that objections were not sustainable during a preliminary hearing as objections on the basis of relevancy and competency were viable and sustainable. The blanket “standing” objection did not serve the purpose of preserving for appellate review the factual and legal foundations for objections. The Court finally rejected the argument that the directive was a “general policy” as opposed to a “rule” and that on that basis alone it was invalid because the district court lacked authority to promulgate it.