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Commonwealth of Kentucky v. Hon. Phillip J. Shepherd

2026-08-20

Summary

Holding. The Supreme Court of Kentucky denied the petition for a writ of prohibition, holding that the Franklin Circuit Court possessed subject matter jurisdiction over the inmates' declaratory judgment and constitutional challenges to execution regulations regardless of any exhaustion defects, and that any alleged failure to exhaust administrative remedies would constitute legal error occurring within the court's jurisdiction rather than an absence of jurisdiction warranting extraordinary relief.

Death-row inmates initiated a lawsuit in 2006 challenging Kentucky's execution procedures and related regulations, including protocols for determining competency and intellectual disability. The Department of Corrections eventually promulgated formal execution regulations following a prior state Supreme Court decision requiring such rulemaking. The inmates subsequently amended their claims multiple times as the regulations were revised, and numerous claims remained pending for years during which both sides litigated the merits. The Commonwealth later moved to dismiss the remaining claims on the ground that the inmates failed to exhaust administrative remedies under a Kentucky statute governing prison conditions complaints. The circuit court denied dismissal, reasoning that the claims challenged the validity of regulations themselves and that the grievance process could not address constitutional issues. The Commonwealth sought a writ of prohibition, arguing that the lack of administrative exhaustion deprived the circuit court of jurisdiction to proceed.

The state Supreme Court concluded that circuit courts possess general jurisdiction over declaratory judgment actions and constitutional challenges to administrative regulations. The court recognized that exhaustion requirements may have procedural significance but rejected the argument that noncompliance with the exhaustion statute eliminates subject matter jurisdiction. The court noted that the extraordinary history of nearly two decades of litigation, during which the Commonwealth had actively litigated the merits and engaged in regulatory amendments, undermined arguments that exhaustion should bar judicial consideration at this late stage. The court observed that constitutional challenges often fall outside exhaustion requirements because agencies lack authority to determine constitutional validity.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a statutory requirement to exhaust administrative remedies divests a circuit court of subject matter jurisdiction
  • Whether constitutional and facial challenges to administrative regulations fall outside exhaustion requirements
  • The proper timing and procedural posture for raising exhaustion objections after extensive prior litigation on the merits

Procedural posture

The Commonwealth petitioned for a first-class writ of prohibition in the Kentucky Supreme Court to prevent the Franklin Circuit Court from continuing to adjudicate death-sentenced inmates' declaratory judgment and constitutional challenge claims allegedly filed without exhausting administrative remedies.

Authorities cited

Opinion

majority opinion

RENDERED: AUGUST 20, 2026

TO BE PUBLISHED

Supreme Court of Kentucky

2025-SC-0310-OA

COMMONWEALTH OF KENTUCKY PETITIONER

V. IN SUPREME COURT

HONORABLE PHILLIP J. SHEPHERD, RESPONDENT JUDGE, FRANKLIN CIRCUIT COURT

AND

BENNY HODGE; BRIAN KEITH REAL PARTIES IN INTEREST/ MOORE; DAVID MATTHEWS; DAVID APPELLEES SANDERS; DONALD JOHNSON; KARU

GENE WHITE; KENTUCKY

DEPARTMENT OF CORRECTIONS;

MITCHELL WILLOUGHBY; RALPH

BAZE; ROBERT FOLEY; ROGER

WHEELER; RONNIE BOWLING;

VICTOR TAYLOR; VIRGINIA CAUDILL;

AND WILLIAM THOMPSON

OPINION OF THE COURT BY JUSTICE KELLER

DENYING PETITION FOR WRIT OF PROHIBITION

The Commonwealth obtained death penalty convictions for the parties

involved in these proceedings, and there has been extensive litigation over the

course of decades. The Commonwealth petitions this Court for a first-class

writ of prohibition directing the Franklin Circuit Court to dismiss a

longstanding declaratory judgment action, which includes current regulations

in dispute, on the grounds that the inmate-plaintiffs failed to exhaust administrative remedies under KRS 1 454.415. The issue is whether the

Franklin Circuit Court acted outside its jurisdiction by permitting deathsentenced inmates to litigate claims allegedly filed without exhausting said

administrative remedies.

This Court concludes that the Franklin Circuit Court had subject matter

jurisdiction over this type of case—declaratory and constitutional challenges to

administrative regulations—regardless of any unresolved questions about how

the exhaustion doctrine applies to particular claims and without deciding

whether exhaustion was required for some or all of them. Accordingly, firstclass writ relief is unavailable. Because exhaustion is a non-jurisdictional

procedural requirement, any alleged error concerning its application can be

addressed on appeal after final judgment.

As extraordinary writ relief is unavailable under these circumstances, we

deny the petition.

I. FACTS AND PROCEDURAL BACKGROUND

This litigation originated in 2006, when several inmates, under sentences

of death, filed an action in Franklin Circuit Court seeking declaratory and

injunctive relief concerning Kentucky’s execution procedures. The inmates

alleged that the Department of Corrections (“DOC”) had implemented execution

protocols without promulgating them as administrative regulations in

accordance with KRS Chapter 13A, Kentucky’s Administrative Procedures Act

1 Kentucky Revised Statutes.

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(“APA”). The inmates sought to enjoin executions until lawful procedures were

adopted and lawfully reviewed.

In Bowling v. Kentucky Department of Corrections, 301 S.W.3d 478 (Ky.

2009), this Court held that the DOC was required to promulgate execution

procedures through the formal administrative rulemaking process set forth in

the APA. We concluded that the execution protocols constituted administrative

regulations subject to KRS Chapter 13A and, therefore, could not be

implemented solely through internal departmental policies. Following that

decision, the DOC promulgated formal execution regulations which became

effective in 2010.

Extensive and ongoing litigation concerning the validity and sufficiency of

those regulations followed. See id.; Baze v. Rees, 553 U.S. 35 (2008). Over the

ensuing years, the DOC amended the regulations multiple times, while the

inmates repeatedly amended their pleadings to challenge revised provisions

relating to execution procedures, intellectual disability determinations, insanity

procedures, attorney access, and related matters. The parties engaged in

substantial motion practice, discovery, injunction proceedings, and

constitutional litigation. No executions have been performed during these

proceedings.

Following additional amendments to the execution regulations in 2023

and 2024, the inmates amended their pleadings to maintain certain unresolved

claims, conform existing claims to the revised regulations, and withdraw claims

rendered moot by the amendments. The remaining claims challenge various

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aspects of the current regulations, including provisions relating to intellectual

disability determinations, insanity procedures, attorney access, and execution

protocols.

In response, the Commonwealth moved to dismiss the remaining claims

on the ground that the inmates failed to exhaust administrative remedies

under KRS 454.415 before pursuing judicial relief. The Franklin Circuit Court

denied the motion, concluding that the remaining claims principally challenged

the validity and sufficiency of the execution regulations themselves and that

exhaustion was not required under the circumstances presented because the

grievance process could not provide the relief sought or adjudicate the

constitutional and regulatory issues raised. The Commonwealth thereafter

filed the present petition for writ of prohibition, contending the alleged failure

to exhaust deprived the circuit court of jurisdiction to proceed further in the

underlying action.

II. STANDARD OF REVIEW

This Court, when deciding a petition for writ, must first determine

whether the writ is appropriate. Bender v. Eaton, 343 S.W.2d 799, 801 (Ky.

1961). The petition must be dismissed if the remedy is not available. Id. See

also Hoskins v. Maricle, 150 S.W.3d 1, 18 (Ky. 2004) (“[O]nly after determining

that the prerequisites exist will the court decide whether an error occurred for

which a writ should issue.”).

A writ of prohibition is an extraordinary remedy that the Courts of the

Commonwealth have been cautious and conservative in entertaining and

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granting. Newell Enters., Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky. 2005);

Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 808 (Ky. 2005); Bender, 343

S.W.2d at 799. "Extraordinary writs are disfavored...." Buckley v. Wilson, 177

S.W.3d 778, 780 (Ky. 2005). The merits of such a writ will not be considered

unless the requesting party can demonstrate a minimum threshold showing of

harm and lack of redressability on appeal. St. Luke Hosp., Inc. v. Kopowski,

160 S.W.3d 771, 774 (Ky. 2005).

Writs are generally divided into two classes: (1) those where the inferior

court is acting without jurisdiction; or (2) the court is acting within its

jurisdiction but erroneously. Grange, 151 S.W.3d at 808. A higher court may

issue an extraordinary writ, i.e. a writ of prohibition, if the lower court is acting

without jurisdiction. Indep. Order of Foresters v. Chauvin, 175 S.W.3d 610,

613 (Ky. 2005). If the inferior court is acting erroneously but within its

jurisdiction, a writ may be granted if “there exists no adequate remedy by

appeal or otherwise and great injustice and irreparable injury will result if the

petition is not granted.” Hoskins, 150 S.W.3d at 10. However, irreparable harm

need not be shown “provided 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, 343 S.W.2d at 801 (emphasis in original). The right to appeal does not

necessarily indicate an adequate remedy. Chamblee v. Rose, 249 S.W.2d 775,

777 (Ky. 1952).

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The decision whether to issue a writ always lies within the discretion of

the Court. Hoskins, 150 S.W.3d at 5. We exercise this discretion

conservatively because a “careful approach is necessary to prevent shortcircuiting normal appeal procedure.” Bender, 343 S.W.2d at 801 (“Our cases

involving controversies in this second class, where it is alleged the lower court

is acting or proceeding erroneously within its jurisdiction, have consistently

[apparently without exception] required the petitioner to pass the first

test, i.e., he must show he has no adequate remedy by appeal or

otherwise.”). A writ of prohibition is a remarkable remedy and proper only:

[U]pon a showing that (1) the lower court is proceeding or is

about to proceed outside of its jurisdiction and there is no

remedy through an application to an intermediate court; or (2)

[ ] the lower court is acting or is about to act erroneously,

although within its jurisdiction, and there exists no adequate

remedy by appeal or otherwise and great injustice and

irreparable injury will result if the petition is not granted.

Hoskins, 150 S.W.3d at 10.

When considering a writ of this type, a court must first

concern itself with the prerequisites—no adequate remedy on

appeal and great and irreparable harm—before consideration

of the merits. Caldwell v. Chauvin, 464 S.W.3d 139, 145 (Ky.

2015). “Even if the requirements are met and error found, the

grant of a writ remains within the sole discretion of the Court.”

Id. at 145-46.

Lynch v. Commonwealth, 718 S.W.3d 726, 729 (Ky. 2025).

As recently reiterated in Marcum v. Scorsone, 457 S.W.3d 710, 716 (Ky.

2015), the distinction between first-class and second-class writs remains

significant because the requirements applicable to each differ materially. A

first-class writ concerns situations in which a lower court is proceeding outside

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its jurisdiction, while a second-class writ concerns alleged erroneous action

occurring within the lower court’s jurisdiction. Id.; Hoskins, 150 S.W.3d at 10.

Here, the Commonwealth expressly seeks only first-class writ relief, contending

the alleged failure to exhaust administrative remedies under KRS 454.415

deprived the Franklin Circuit Court of jurisdiction to proceed in the underlying

action. Accordingly, before addressing the merits of the Commonwealth’s

exhaustion arguments, this Court must first determine whether the alleged

defect implicates the circuit court’s jurisdiction in the sense contemplated by

Kentucky writ jurisprudence. Hence, before we look to the merits of the

petitioner's claim, we must decide whether a writ is the appropriate remedy.

Bender, 343 S.W.2d at 801.

III. ANALYSIS

A. Subject matter jurisdiction exists with the circuit court.

The Commonwealth argues the Franklin Circuit Court lacked subject

matter jurisdiction to proceed on the inmates’ remaining claims because the

inmates failed to exhaust administrative remedies as required by KRS 454.415.

Relying principally upon Jefferson Cnty. Bd. of Educ. v. Edwards, 434 S.W.3d

472, 476-79 (Ky. 2014), Commonwealth v. DLX, Inc., 42 S.W.3d 624 (Ky. 2001),

Ky. State Police v. Scott, 529 S.W.3d 711 (Ky. 2017), and Popplewell’s Alligator

Dock No. 1, Inc. v. Rev. Cabinet, 133 S.W.3d 456 (Ky. 2004), the Commonwealth

contends exhaustion of administrative remedies constitutes a jurisdictional

prerequisite to judicial relief where the General Assembly has mandated

exhaustion by statute. The Commonwealth maintains KRS 454.415 expressly

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requires inmates to exhaust all available administrative remedies before

commencing litigation concerning prison conditions and further requires

verification of exhaustion within the pleadings themselves. According to the

Commonwealth, the inmates’ surviving claims—including challenges

concerning execution procedures, competency and intellectual disability

determinations, medical procedures, attorney access, and related execution

protocols—constitute grievable “conditions-of-confinement” claims subject to

the statute’s mandatory exhaustion provisions. The Commonwealth further

argues the inmates improperly attempt to avoid exhaustion requirements by

characterizing operational and fact-dependent claims as facial constitutional

challenges even though, in the Commonwealth’s view, many of the claims

necessarily depend upon individualized circumstances, implementation

procedures, factual development, and prison administration. Thus, the

Commonwealth contends the circuit court lacked authority to proceed on nonexhausted claims altogether and that any continued adjudication of such

claims constitutes action outside the court’s jurisdiction sufficient to warrant

extraordinary first-class writ relief without any additional showing of

irreparable injury or lack of appellate remedy.

In response, the inmates contend the Franklin Circuit Court plainly

possesses subject matter jurisdiction over declaratory judgment actions and

constitutional challenges to administrative regulations. Citing Spears v.

Goodwine, 490 S.W.3d 347, 352 (Ky. 2016), the inmates emphasize that “[t]he

court has subject matter jurisdiction when the ‘kind of case’ identified in the

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pleadings is one which the court has been empowered, by statute or

constitutional provision, to adjudicate.” The inmates further maintain that

circuit courts possess general jurisdiction over declaratory judgment actions

pursuant to KRS 23A.010 and KRS 418.040 and note that this Court itself

reopened the underlying action in 2010 under CR 2 60.02 and expressly

directed the filing of amended petitions challenging the execution regulations

promulgated pursuant to Bowling and KRS Chapter 13A. See Bowling v. Ky.

Dep’t of Corr., No. 06-CI-574 (Franklin Cir. Ct. May 21, 2010 Order). With this,

they argue the Commonwealth improperly conflates alleged legal error

concerning exhaustion with the absence of subject matter jurisdiction itself. In

the inmates’ view, even assuming some claims may ultimately be subject to

administrative exhaustion requirements under KRS 454.415, such disputes

concern whether the circuit court correctly exercised its authority in particular

instances, not whether the court lacked the fundamental adjudicative power to

entertain this longstanding declaratory judgment action altogether. See also

Romines v. Coleman, 671 S.W.3d 269, 276 (Ky. 2023) (recognizing that a court

may act “within its jurisdiction” even where legal error is alleged).

This Court finds this matter to be appropriately before us.

Subject matter jurisdiction is an issue readily addressed

“before the trial court and, if unsuccessful at the trial court

level, ultimately in the normal appellate process.” (emphasis

added). Not only is such an issue capable of resolution via

direct appeal, but it is also subject to determination by a

higher court via a writ of prohibition. CR 81; Spears v.

Goodwine, 490 S.W.3d 347, 351-52 (Ky. 2016).

2 Kentucky Rules of Civil Procedure.

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Bd. of Educ. of Paris v. Earlywine, 719 S.W.3d 1, 5 (Ky. 2025), reh'g denied

(Aug. 14, 2025) (internal citations omitted).

Kentucky appellate courts have recognized that exhaustion disputes

often depend heavily upon the nature of the claims asserted, the statutory

authority of the relevant agency, and the procedural posture of the underlying

action. See DLX, 42 S.W.3d at 626–29; Cunningham v. Lexington-Fayette Urb.

Cnty. Gov’t, 326 S.W.3d 5, 9–10 (Ky. 2010); Popplewell’s Alligator Dock, 133

S.W.3d at 471–72. This Court has recognized that exhaustion may not be

required where an agency lacks authority to resolve the issue presented, such

as certain constitutional challenges or requests for relief beyond the agency’s

statutory power. See DLX, 42 S.W.3d at 626–29; Cunningham, 326 S.W.3d at

9–10. At the same time, Kentucky cases have also recognized that exhaustion

requirements may operate jurisdictionally within particular statutory

administrative-review schemes. See Edwards, 434 S.W.3d at 476–79; Ky. State

Police v. Scott, 529 S.W.3d 711, 716–18 (Ky. 2017). Accordingly, the

applicability and effect of exhaustion principles must be evaluated within the

particular statutory and procedural context presented.

We recognize the Commonwealth has not advanced a generalized

exhaustion argument, but rather contends on a claim-by-claim basis that the

inmates’ remaining allegations constitute grievable conditions-of-confinement

claims subject to KRS 454.415 requiring administrative exhaustion before

judicial review. Those arguments are not insubstantial and may bear upon

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whether certain claims should ultimately proceed, whether particular claims

are properly characterized as facial or operational, or whether the circuit court

correctly denied dismissal. But those questions concern the propriety of

proceeding on individual claims, not whether the Franklin Circuit Court lacked

fundamental subject matter jurisdiction over this class of case altogether. The

underlying action remains a declaratory judgment and constitutional challenge

to administrative execution regulations—a category of controversy plainly

within the general jurisdiction of the circuit courts. Thus, even assuming

portions of the circuit court’s exhaustion analysis may ultimately prove

erroneous, any such error would constitute alleged legal error occurring within

the court’s jurisdiction rather than action wholly outside it sufficient to justify

extraordinary first-class writ relief.

B. Exhaustion of administrative remedies favors denying the writ.

The Commonwealth’s exhaustion argument is further undermined by the

procedural posture and extraordinary history of this litigation. This action has

been pending in various forms for nearly two decades. Since this Court’s

decision in Bowling, supra, the parties have engaged in repeated rounds of

regulatory amendments, amended pleadings, discovery, injunction practice,

and substantive adjudication concerning the validity of Kentucky’s execution

regulations. Numerous claims presently before the Court have remained

pending for more than seven years. During that time, the Commonwealth

actively litigated the merits of those claims and, at multiple junctures,

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expressly contemplated that the remaining constitutional and regulatory issues

would proceed toward adjudication.

Against that backdrop, the Commonwealth now seeks extraordinary writ

relief on the theory that the circuit court lacked authority to entertain the

action because Plaintiffs failed to exhaust administrative remedies. The timing

of that argument raises substantial concerns regarding the practical purposes

underlying the exhaustion doctrine. Exhaustion requirements are generally

intended to afford administrative agencies the first opportunity to resolve

disputes, develop factual records, apply agency expertise, and potentially

obviate the need for judicial intervention. Those purposes have largely already

been fulfilled—or rendered inapplicable—in this case.

The record before the Court is extensive and well-developed. The DOC

has repeatedly articulated its substantive positions regarding the challenged

regulations through formal rulemaking proceedings, Statements of

Consideration, discovery responses, motion practice, and litigation positions

advanced over many years. The record reflects that the DOC itself has, at

times, asserted that it lacks authority to implement certain changes requested

by the inmates absent formal regulatory amendment. The Commonwealth has

likewise litigated the constitutional and statutory validity of the regulations on

the merits for years before renewing its exhaustion objection in the present

procedural posture.

This prolonged course of merits litigation materially distinguishes the

present matter from cases in which exhaustion objections are timely raised at

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the outset of proceedings before substantial judicial and party resources have

been expended. While jurisdictional principles cannot be disregarded merely

because litigation has progressed extensively, courts considering extraordinary

writ relief may appropriately evaluate whether the requested intervention would

meaningfully advance the policies underlying the asserted procedural doctrine

or instead produce duplicative proceedings, additional delay, and inefficiency.

The Court is also mindful that the Commonwealth seeks a writ—“an

extraordinary remedy” that is “disfavored” and reserved for exceptional

circumstances. Marcum, 457 S.W.3d at 716. Here, the challenged litigation is

not in its infancy. Rather, it approaches final adjudication after years of

judicial supervision and substantive rulings.

Permitting the action to proceed to final judgment preserves the

availability of ordinary appellate review while avoiding the substantial risk that

issuance of a writ at this late stage would merely restart already extensive

litigation concerning claims long known to the parties and the Court.

Therefore, the Court concludes that the Commonwealth’s belated invocation of

exhaustion principles weighs against the exercise of extraordinary writ

authority in this matter.

The Commonwealth alternatively contends that, even if the Franklin

Circuit Court possessed general subject matter jurisdiction over declaratory

judgment actions, the circuit court nevertheless exceeded its lawful authority

by permitting this action to proceed absent exhaustion of administrative

remedies under KRS 454.415. Framed variously as a statutory limitation on

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judicial authority, an exclusivity requirement, and a prerequisite to judicial

review, the Commonwealth’s theories ultimately seek the same result:

treatment of the alleged exhaustion defect as one depriving the circuit court of

authority to proceed for purposes of first-class writ relief.

We decline to adopt such an expansive conception of jurisdiction.

Kentucky circuit courts are courts of general jurisdiction. They

unquestionably possess constitutional and statutory authority to adjudicate

declaratory judgment actions, constitutional challenges, requests for injunctive

relief, and disputes involving the validity of administrative regulations. The

underlying action falls squarely within that category of cases. Whether the

circuit court correctly interpreted and applied exhaustion principles in this

particular case is a distinct question from whether the court possessed subject

matter jurisdiction to entertain the action at all. Kentucky law has long

recognized that “[s]ubject matter jurisdiction does not mean jurisdiction over

‘this case’; rather, it means jurisdiction over ‘this kind of case.’” Spears, 490

S.W.3d at 351.

The Commonwealth’s reliance upon the mandatory language of KRS

454.415 does not alter that conclusion. To be sure, the statute imposes

important procedural obligations upon inmate litigants and may, in

appropriate circumstances, require dismissal of claims filed without

exhaustion. But mandatory statutory language does not automatically

transform a procedural prerequisite into a jurisdictional limitation depriving a

circuit court of adjudicatory power. The General Assembly did not expressly

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state that noncompliance with KRS 454.415 divests circuit courts of subject

matter jurisdiction, and this Court declines to infer such a sweeping

jurisdictional consequence absent unmistakable legislative direction.

Nor are we persuaded by the Commonwealth’s characterization of the

DOC’s grievance process as an exclusive administrative forum whose

invocation is a jurisdictional prerequisite to judicial review in every

circumstance. The claims remaining in the underlying action include

substantial constitutional and regulatory challenges to the validity of execution

regulations themselves. Kentucky precedent has long recognized that facial

constitutional challenges occupy a distinct posture within exhaustion

jurisprudence because administrative agencies lack authority to adjudicate the

constitutional validity of statutes and regulations. See DLX, 42 S.W.3d at 626;

Commonwealth v. AT&T Corp., 462 S.W.3d 399, 401 (Ky. 2015). Without

deciding the precise scope of those exceptions as applied to each remaining

claim, their presence alone counsels against treating the exhaustion issue

presented here as a clear jurisdictional defect appropriate for extraordinary

writ intervention.

Likewise unavailing is the Commonwealth’s suggestion that the circuit

court lacked authority to proceed because the claims were insufficiently ripe or

because further factual development should first have occurred through

administrative review. The underlying litigation has been pending in various

forms for nearly two decades. During that time, the parties have engaged in

extensive motion practice, discovery, rulemaking proceedings, and substantive

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litigation regarding the challenged regulations. The record before the circuit

court is substantial and fully developed in many respects. Whatever force such

arguments might carry at the inception of litigation, they do not establish the

sort of patent jurisdictional defect necessary to support issuance of a first-class

writ in the present posture of this case.

Ultimately, the Commonwealth’s alternative theories amount to

assertions that the circuit court committed legal error in declining to dismiss

some or all claims on exhaustion grounds. Even assuming arguendo that the

circuit court erred in some respect, such alleged errors would constitute, at

most, erroneous action within the court’s jurisdiction—not action outside it.

Kentucky’s extraordinary writ jurisprudence carefully distinguishes between

those categories. A first-class writ is reserved for situations in which a lower

court wholly lacks jurisdiction over the type of case before it. That

circumstance is not present here.

Moreover, the extraordinary procedural history of this matter further

counsels against writ relief. The parties have litigated these issues extensively

over many years, and the Commonwealth itself has participated in substantial

merits litigation concerning the challenged regulations. At this advanced stage

of the proceedings, ordinary appellate review following final judgment provides

an adequate mechanism for review of any preserved exhaustion arguments or

alleged legal errors committed by the circuit court.

Accordingly, because the Franklin Circuit Court possessed subject

matter jurisdiction over the underlying declaratory judgment action, and

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because the Commonwealth has failed to establish the type of jurisdictional

defect necessary to justify extraordinary intervention by first-class writ, the

petition for writ of prohibition is denied.

IV. CONCLUSION

Whether some, all, or none of the remaining claims ultimately required

exhaustion under KRS 454.415 is a question that may be addressed, if

necessary, through ordinary appellate review following final judgment. The

present writ proceeding does not require this Court to definitively resolve those

questions because the Franklin Circuit Court unquestionably possessed

subject matter jurisdiction over declaratory judgment actions of this type, and

any alleged exhaustion error would constitute, at most, potential legal error

within that jurisdiction.

All sitting. Bisig, Goodwine, and Nickell, JJ., concur. Lambert, C.J.,

concurs in result only by separate opinion which Conley and Thompson, JJ.,

join.

LAMBERT, C.J., CONCURRING IN RESULT ONLY: As the Majority

opinion states, the underlying action is a declaratory judgment and

constitutional challenge to the administrative execution regulations. Although

some claims may ultimately be subject to dismissal under KRS 454.415, the

Franklin Circuit court possessed subject matter jurisdiction over claims of this

type. Should the Commonwealth believe the Franklin Circuit Court erred by

failing to dismiss any claims pursuant to KRS 454.415, it may seek review from

this Court. Until then, we must refrain from exercising our extraordinary writ

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jurisdiction to resolve matters that remain within the ordinary appellate

process.

I write separately to emphasize that in reaching that conclusion, I

express no view on the merits of the underlying case, nor the policy concerns it

may present. These claims arise against the backdrop of extensive litigation

and complex issues surrounding the death penalty. Those considerations,

however, are not before us. The sole question presented is whether the

extraordinary remedy of a first-class writ is warranted. It is not. Therefore, I

concur in result only.

Conley and Thompson, JJ., join.

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COUNSEL FOR PETITIONER:

Russell M. Coleman

Kentucky Attorney General

John H. Heyburn

Assistant Attorney General

Christopher Henry

Assistant Attorney General

RESPONDENT:

Judge Phillip J. Shepherd

Pro Se

COUNSEL FOR APPELLEE/REAL PARTY IN INTEREST, KENTUCKY

DEPARTMENT OF CORRECTIONS:

Angela Turner Dunham

Justice & Public Safety Cabinet, Legal Services

COUNSEL FOR APPELLEES/REAL PARTIES IN INTEREST: RALPH BAZE;

RONNIE BOWLING; VIRGINIA CAUDILL; ROBERT FOLEY; BENNY HODGE;

DONALD JOHNSON; DAVID MATTHEWS; BRIAN KEITH MOORE; DAVID

SANDERS; VICTOR TAYLOR; WILLIAM THOMPSON; ROGER WHEELER; KARU

GENE WHITE; AND MITCHELL WILLOUGHBY:

David Michael Barron

Assistant Public Advocate

Dennis James Burke

Assistant Public Advocate

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