MICHAEL TYRONE TOLLEY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
April 20, 2001; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-002769-MR
MICHAEL TYRONE TOLLEY
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS J. KNOPF, JUDGE
INDICTMENT NO. 99-CR-00260
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI and HUDDLESTON, Judges.
HUDDLESTON, Judge.
Michael Tyrone Tolley appeals from a final
order of involuntary commitment.
jurisdiction
over
the
case
Tolley contends the court lacked
because
one
of
the
examining
psychiatrists did not certify his examination within twenty-four
hours and that he was entitled to a twelve-person jury.
Tolley was first indicted in 1986 for murder of an
automobile body shop repairman. After Tolley was found incompetent
to
stand
trial,
he
was
committed
to
Central
State
Hospital.
Subsequently,
times.1
he
has
been
reindicted
and
recommitted
several
Apparently he has been involuntarily committed to Central
State Hospital since 1986.
reindicted for the 1986 murder.
On January 26, 1999, Tolley was
On September 29, 1999,
the court
found Tolley incompetent to stand trial for murder and dismissed
the indictment without prejudice.
On October 15, 1999, the court
ordered Tolley involuntarily committed for three hundred sixty
days.
The first issue presented is whether the court lacked
jurisdiction
over
the
case
because
one
of
the
examining
psychiatrists did not certify his examination within twenty-four
hours.
“[Jurisdiction] consists of two primary elements — (1)
jurisdiction of the subject matter, and (2) jurisdiction of the
person complaining of the judgment.”2
personal jurisdiction.
Tolley does not challenge
However, subject matter jurisdiction is
challenged inasmuch as there was a failure to comply with the
statutory requirements for timely certification.
In determining
whether subject matter jurisdiction exists in a particular case,
one of the elements to be considered is “whether the court, under
the laws of the sovereignty of its creation, is given the right to
pass upon the particular class of case involved.”3
The law governing certification of examinations conducted
1
See Tolley v. Commonwealth, Ky., 892 S.W.2d 580 (1995).
2
Covington Trust Co. of Covington v. Owens, 278 Ky. 695, 129
S.W.2d 186, 190 (1939).
3
Id.
-2-
in anticipation of involuntary hospitalization proceedings is found
in several places in the Kentucky Revised Statutes (KRS).
Tolley
directs our attention to KRS 202A.061 which provides that:
In any proceeding for involuntary hospitalization under
the
applicable
criteria
provisions
for
of
involuntary
this
chapter,
hospitalization
if
the
are
not
certified by at least two (2) examining qualified mental
health professionals, the court shall, without taking any
further action, terminate the proceedings and order the
release
of
the
professionals
person.
shall
The
certify
qualified
to
the
mental
health
court
within
twenty-four (24) hours (excluding weekends and holidays)
of the examination, their findings and opinions as to
whether the person shall be involuntarily hospitalized.4
This language is also found in KRS 202A.056(1)5 and KRS
202A.051(6)(c).6
4
Emphasis supplied.
5
The pertinent language of KRS 202A.056(1) is as follows:
The certificate shall state that the respondent has been
examined by each of the qualified mental health
professionals making the certificate within twenty-four
(24) hours (excluding weekends and holidays) prior to the
date of the certificate.
6
The pertinent language of KRS 202A.051(6)(c) is as follows:
[T]he court shall: . . . (c) Cause the respondent to be
examined without unnecessary delay by two (2) qualified
mental health professionals, at least one (1) of whom is
a physician. The qualified mental health professionals
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To comply with the dictates of KRS 202A.051(6)(c), two
qualified professionals must examine Tolley.7
Tolley agrees that
this was properly done; however, he argues that the failure of one
of the examining professionals to certify his examination within
twenty-four hours, as is required under KRS 202A.061, mandates a
dismissal.
The plain language of the statute, according to the
Court’s analysis in Schuttemeyer, “requires dismissal if there are
not two (2) such certifications.”8
The
record
reveals
that
one
of
Tolley’s
examining
professionals, Dr. Boswell Tabler, examined Tolley on September 26,
1999, but did not certify this examination until October 1, 1999.
“[C]ertifications must be based upon current examinations rather
than relying upon prior records . . . .”9
As noted above, KRS
202A.061 states that “[t]he qualified mental health professionals
shall certify to the court within twenty-four (24) hours (excluding
weekends and holidays) of the examination . . . .”10
KRS 446.010(29), “‘[s]hall’ is mandatory[.]”
must be made within twenty-four hours[.]”11
According to
“[C]ertifications
Therefore, the only
shall certify within twenty-four (24) hours (excluding
weekends and holidays) their findings.
7
Schuttemeyer v. Commonwealth, Ky. App., 793 S.W.2d 124, 128
(1990).
8
Id.
9
Id.
10
Emphasis supplied.
11
Schuttemeyer, supra, n. 7, at 129.
-4-
class of cases that can be brought before the court for involuntary
commitment proceedings are those cases where there are two timely
certifications.
Since one of the two professionals required did not
comply with the requirements of KRS 202A.061, the circuit court did
not have the right to pass upon the particular class of case before
the court.
Lacking subject matter jurisdiction, the court was
without authority to hear the case.
The second issue presented by Tolley is whether an
involuntary
hospitalization
trial
requires a twelve-person jury.
conducted
in
circuit
court
While this issue is technically
moot in light of our resolution of the first issue, we will address
it since it is an issue that is likely to recur.12
The Commonwealth correctly points out that Schuttemeyer
extended
jurisdiction
over
proceedings
for
the
involuntary
hospitalization of mentally ill persons to the circuit courts - an
exercise previously reserved to the district courts.13
However,
Schuttemeyer provides no guidance on the question of whether such
proceedings, when conducted in the circuit court, require a jury of
twelve.
The Commonwealth directs us to KRS 29A.280(1) which
states that “[j]uries for all trials in Circuit Court shall be
composed of twelve (12) persons. Juries for all trials in District
12
See Dean v. Commonwealth, Ky., 777 S.W.2d 900 (1989), Ice v.
Commonwealth, Ky., 667 S.W.2d 671 (1984).
13
Schuttemeyer, supra, n. 7, at 127.
-5-
Court
shall
be
composed
of
six
(6)
persons.”
Yet,
the
Commonwealth, citing to KRS 29A.280(2), argues that a jury trial in
circuit court may consist of less than twelve persons, except that
no jury trial shall consist of less than six persons.
argument is misleading.
This
The actual language of KRS 29A.280(2) is
as follows:
In Circuit Court, at any time before the jury is sworn,
the parties with the approval of the court may stipulate
that the jury shall consist of any number less than
twelve (12), except that no jury shall consist of less
than six (6) persons.14
The parties did not make the required stipulation in this case.
Tolley argues that Sections 7 and 248 of the Kentucky
Constitution guarantee his right to a twelve-person jury.
We find
it unnecessary to make such a determination in this case.
KRS
29A.280(1) makes clear the requirement of a twelve-person jury for
all trials conducted in circuit court.
mentally
ill
person
faces
the
We hold that when a
possibility
of
involuntary
hospitalization in circuit court, KRS 29A.280(1) requires a twelveperson jury at trial.
We vacate the final order of involuntary commitment.
ALL CONCUR.
14
Emphasis supplied.
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BRIEF OF APPELLANT:
BRIEF FOR APPELLEE:
Frank W. Heft, Jr.
Office of the Jefferson
District Public Defender
Louisville, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Paul D. Gilbert
Assistant Attorney General
Frankfort, Kentucky
Daniel T. Goyette
Jefferson District Public
Defender
Louisville, Kentucky
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