Commonwealth of Kentucky v. Hon. Phillip J. Shepherd

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

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administrative remedies under KRS 1 454.415. The issue is whether the Franklin Circuit Court acted outside its jurisdiction by permitting death- sentenced 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, first- class 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 short- circuiting 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 non- exhausted 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