THOMAS C. BOWLING, RALPH BAZE AND BRIAN KEITH MOORE V. KENTUCKY DEPARTMENT OF CORRECTIONS
Annotate this Case
Download PDF
~sUyrrntr Courf of T
'
2007-SC-000021-MR`
THOMAS C . BOWLING,
RALPH BAZE
AND
BRIAN KEITH MOORE
V
AMAD __
APPELLANTS
ON APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE SAMUEL G. MCNAMARA, JUDGE
CASE NO . 06-CI-00574
KENTUCKY DEPARTMENT
OF CORRECTIONS
APPELLEE
OPINION OF THE COURT BY JUSTICE ABRAMSON
AFFIRMING IN PART AND REVERSING IN PART
Appellants Bowling and Baze were convicted of murder and sentenced to
death in 1991 and 1994, respectively . Each has pursued and exhausted all
direct appeals and collateral attacks in the state courts and, jointly, they
prosecuted a declaratory judgment action challenging Kentucky's lethal
injection protocol on several grounds including the prohibition on cruel and
unusual punishment set forth in the Eighth Amendment of the U.S .
Constitution and Section 17 of the Kentucky Constitution . That declaratory
judgment action prompted a seven-day bench trial in the circuit court, with
Appellants' constitutional arguments ultimately being rejected by both this
Court in Baze v. Rees , 217 S .W .3d 207 (Ky. 2006) and the United States
Supreme Court in Baze v. Rees, -_U .S .-, 170 L.Ed.2d 420 (2008) . In this
second declaratory judgment action., those Appellants challenge the same lethal
injection protocol but this time they contend that it is unenforceable because it
was not properly adopted as an administrative regulation in. accordance with
Kentucky's Administrative Procedure Act (APA) . While unquestionably "death
is different", the principles of res judicata are no less applicable to capital
defendants than other parties who pursue relief in our justice system . A
declaratory judgment action is the appropriate means of challenging
implementation of a defendant's death sentence, given the necessity of joining
the Department of Corrections which is not a party to the criminal action, but
piecemeal litigation through successive actions is not allowed. Simply put,
Appellants Bowling and Baze were required to join all claims regarding
implementation of their sentences of execution in their original declaratory
judgment action, and they are precluded as a matter of law from reserving
arguments for subsequent actions. Accordingly, res judicata precludes
consideration of Bowling and Baze's second declaratory action.
Appellant Moore stands in a different posture before this Court because
this is his first declaratory judgment action, rendering res judicata inapplicable
to his Administrative Procedures Act claim . Having reviewed the applicable
law, it is apparent that the lethal injection protocol implements KRS 431 .220,
Kentucky's lethal injection statute and, further, that significant portions of the
protocol are not matters of internal management for the Department but rather
statements of general applicability and policy which affect private rights .
Pursuant to KRS 13A.1_ 00, the Kentucky General Assembly has required that
such portions of the protocol be adopted as an administrative regulation .
Contrary to the Department's contention, it via not prohibited by statute from
adopting regulations to implement KRS 431 .220. Notably, the Franklin Circuit
Court concluded that the thorough examination of Kentucky's death penalty
protocol in the seven-day bench trial held in Baze and Bowling's first
declaratory judgment action (Baze/Bowling 1), a proceeding in which
approximately 20 witnesses, including several experts, were called by both
sides, was a sufficient public hearing and thus the current protocol need not be
formally adopted as an administrative regulation. While the trial was certainly
an extensive public vetting of the protocol, this Court cannot ignore the
publication and public hearing requirements set forth in Kentucky statutes.
Thus, the Department must proceed pursuant to KRS Chapter 13A to adopt as
an administrative regulation all portions of the protocol implementing the
lethal injection statute except those involving purely internal matters as
discussed herein .
RELEVANT FACTS AND PROCEDURAL BACKGROUND
The three individual appellants in this case, Thomas Bowling, Ralph
Baze, and Brian Keith Moore, were each previously convicted of murder and
sentenced to death. Bowling was convicted and sentenced to death for the
1990 murders of a husband and wife as they were parked in their car outside
their dry cleaning business in Lexington . Bowling v . Commonwealth, 873
S .W.2d 175 (Ky. 1993) . Baze was convicted and sentenced to death for the
1992 murders of two police officers who were attempting to serve five fugitive
warrants on him in Powell County. Baze v . Commonwealth, 965 S .W.2d 817
(Ky. 1997) . Lastly, Moore was convicted and sentenced to death for the 1979
kidnapping and murder of a 77 year-old man who was leaving an A&P grocery
store in Louisville . Moore v. Commonwealth, 771 S .W.2d 34 (Ky . 1988) . As
noted above, Bowling and Baze filed Baze/Bowling I in August 2004, a
declaratory judgment action challenging the lethal injection protocol as a
method of execution on several, primarily constitutional, grounds . Moore,
however, has not previously challenged the implementation of his death
penalty in a declaratory judgment action .
In 1998, the Kentucky General Assembly enacted KRS 431 .220, which
recognized lethal injection as "the only method of execution in this
Commonwealth."' Although this statute does not specify the substances to be
used or the procedures to be followed in implementing the lethal injection, the
Kentucky Department of Corrections ("the Department") issued a two-page
Policy (Corrections Policy and Procedure 9.5) on June 3, 2005, which briefly
outlined three procedures to be followed for an execution : the place of the
inmate's confinement, the pre-execution procedures, and the responsibilities of
the warden during "death watch" and execution. The Department has also
KRS 431 .220(b) states that prisoners who received the death penalty prior to March
31, 1998, shall choose either the lethal injection method of execution or the
electrocution method.
written a lethal injection protocol detailing the specific procedures to be
followed during an execution, but generally has refused to promulgate this
protocol as an administrative regulation or disclose it to the public, arguing
that the protocol is -internal in nature and -is not subject- to the -requirements of
Kentucky's Administrative Procedures Act. In Bagel Bowling I, significant parts
of the protocol became public including the drugs administered, dosage of
each, qualifications of personnel administering the drugs and measures
available for resuscitation of life in the event of a. stay of execution . The
protocol was addressed at length by the U.S . Supreme Court . See Baze v.
Rees , -U.S ._, 170 L. Ed. 2d 429-430 .
Bowling, Baze and Moore (collectively "Appellants") filed this declaratory
judgment action in Franklin Circuit Court requesting that the Department be
enjoined from carrying out any executions until it promulgates the lethal
injection protocol used to implement KRS 431 .220 in accordance with
Kentucky's Administrative Procedures Act. On May 26, 2006, the Department
filed a motion to dismiss the complaint, while Appellants subsequently filed a
motion for summary judgment . After hearing arguments on these motions, on
November 30, 2006, the circuit court entered an order finding that KRS
13A.100 required the lethal injection protocol to be promulgated, granting
Appellants' summary judgment motion, and ordering the Department to
promulgate its protocol pursuant to the procedures set out in the
Administrative Procedures Act.
Following the entry of this order, the Department moved to alter, amend,
or vacate the November 30, 2006 Order pursuant to Kentucky Rule of Civil
Procedure (CR) 59 .05, arguing primarily that its protocol had already been
provided repeatedly to the public and that the portions of the-'protocol hot.
disclosed set out internal procedures only affecting the Department's
personnel. The trial court agreed, and on December 27, 2006, vacated its
November 30 Order because it contained "manifest errors of law." Appellants
now urge this Court to vacate the trial court's December 27, 2006 Order and
reinstate its original order granting the motion for summary judgment.
Appellants advance three bases for a reversal of the trial court's order : the
Department did not present any new arguments to the trial court to justify its
decision to grant the CR 59 .05 motion; the trial court's reasons for granting the
CR 59 .05 motion were insufficient; and lastly, Kentucky's Administrative
Procedure Act requires the Department to adopt regulations for carrying out
lethal injections.
Following briefing on the issues raised by Appellants, this Court in a
June 19, 2008 Order directed the parties to address various procedural
matters including the effect of res IndMala and claim preclusion or splitting of
causes of action on the pending matter and the effect, if any, of a civil action on
the execution of a criminal judgment . Appellants' arguments on appeal and
the issues raised in this Court's June 19, 2008 Order were the subject of oral
arguments on October 16, 2008 .
ANALYSIS
I . The Trial Court Did Not Abuse its Discretion when It Vacated Its
Original Judgment and Entered a New Judgment Pursuant to CR 59 .05.
CR 59 .05 authorizes the trial court. to "alter or amend a judgment, or to
vacate a judgment and enter a new one" on a motion properly filed by a party
within ten days after entry of a final judgment . Recognizing the scope of the
power accorded trial courts by CR 59 .05, this Court has stated that "a trial
court has `unlimited power to amend and alter its own judgments ."' Gullion v.
Gullion, 163 S.W .3d 888, 891-92 (Ky. 2005) citing Henry Clay MiningLo . v. V
8v V Min. Co. , 742 S.W.2d 566 (Ky. 1987) . In Gullion, we cited favorably the
four grounds recognized by the federal courts in construing the federal
counterpart, Federal Rule of Civil Procedure 59(e):
There are four basic grounds upon which a Rule 59(e)
motion may be granted. First, the movant may
demonstrate that the motion is necessary to correct
manifest errors of law or fact upon which the judgment
is based. Second, the motion may be granted so that
the moving party may present newly discovered or
previously unavailable evidence. Third, the motion will
be granted if necessary to prevent manifest injustice .
Serious misconduct of counsel may justify relief under
this theory . Fourth, a Rule 59(e) motion may be
justified by an intervening change in controlling law.
163 S .W.3d at 893 citing
FEDERAL PRACTICE AND PROCEDURE § 2810 .1 .
A trial
judge's ruling pursuant to CR 59 .05 is reviewed by an appellate court under
the abuse of discretion standard . Gullion , 163 S.W .3d at 892 .
In its December 27, 2006 Order, the trial court in this case cited the
relevant standard from Gullion and then concluded that "after further review of
the applicable statutes and an attempt to harmonize those statutes" the
original Order dated November 30, 2006 contained "manifest errors of law ."
The trial court proceeded to outline its conclusions that the lethal injection
protocol was an issue of internal management; KRS 431 .220 does not contain a
directive for the Department to establish regulations to implement lethal
injection ; the current lethal injection protocol is known to the public by virtue
of the BazeZBowling I litigation ; and practical considerations militate against
the use of administrative regulations to develop an execution protocol. The
trial court's five pages of analysis displaced a one sentence finding in the
November 30 Order : "KRS 13A.100 requires the Department of Corrections to
promulgate rules to implement KRS 431 .220, and KRS 13A .120 does not
exempt the Department from rulemaking in this case ." After vacating the
November 30 Order, the trial court denied Appellants' motion for summary
judgment and granted the Department's motion to dismiss .
Plainly, the trial court was authorized to vacate its prior order upon its
own conclusion that it contained "manifest errors of law." Although this Court
is partially reversing the December 27, 2006 Order, there was no abuse of
discretion by the trial court in its decision to vacate the prior order granting
Appellants' summary judgment . Accordingly, the December 27, 2006 Order
was properly entered and is properly before this Court for review .
II. A Declaratory Judgment Action is the Appropriate Vehicle for Raising
the Appellants' Administrative Procedure Act Claim
In a June 19, 2008 Order, this Court sua sponte asked the parties to file
supplemental briefs addressing the related issues of res judicata, claim
preclusion and the rule against splitting causes of action and whether "a civil
action, declara.tory or otherwise, is the appropriate procedural vehicle for
raising the type of challenges brought by the Appellants ." Baze./ Bowling I
implicitly recognized what we now expressly hold, namely that a single
declaratory judgment action pursuant to KRS 418.040 and the civil rules is the
appropriate vehicle for determination of all issues regarding implementation of
the death penalty which are not cognizable in a defendant's criminal action .
KRS 418 .040 provides
In any action in a court of record of this
Commonwealth having general jurisdiction
wherein it is made to appear that an
actual controversy exists, the plaintiff may
ask for a declaration of rights, either alone
or with other relief; and the court may
make a binding declaration of rights,
whether or not consequential relief is or
could be asked.
The declaratory judgment act is to be liberally interpreted and administered
and is intended to make the courts "more serviceable to the people by way of
settling controversies, and affording relief from uncertainty and insecurity with
respect to rights, duties and relations. . . ." KRS 418 .080 ; Continental Ins. Co.
v . Riggs, 277 Ky. 361, 126 S .W.2d 853 (1939) . Recently in Mammoth Medical
v. Bunnell, 265 S .W.3d 205 (Ky. 2008), we noted that although the scope of
KRS Chapter 418, "Declaratory Judgments"
is liberal and wide, there are, however, limits .
Declaratory judgment does not fit every occasion and
does not replace the existing system of remedies and
actions. For example, an action for a declaratory
judgment cannot be instituted to secure a
determination of substantive rights involved in a
pending suit . Gibbs v. Tyree, 287 Ky. 656, 154 S .W.
2d 732, 733 (1941) .
Moreover, declaratory relief is not appropriate "where a special statute is clearly
intended to provide an exclusive remedy ." Iroquois Post No . 229 v . City of
Louisville , 279 S .W.2d 13, 14 (Ky . 1955) . Finally, CR 57 provides that "the
procedure . for obtaining a declaratory judgment~ pursuant to statute shall be in
accordance with these rules . .
Appellants correctly note that there is no statute providing an exclusive
remedy for addressing their APA claim or for that matter any other challenge to
the lethal injection protocol which would involve the Department . Clearly "an
actual controversy" existed between Appellants and the Department regarding
the implementation of the death penalty through lethal injection and, as we
implicitly recognized in Baze /Bowling I, a declaratory judgment action is the
appropriate vehicle for challenges of the type raised by Appellants . Baze , 217
S.W .3d at 209-210. The availability of a declaratory action does not, however,
mean that multiple declaratory actions may be filed seriatim challenging
implementation of the death penalty on selected grounds. When a capital
defendant files a declaratory judgment action, he must join all claims then
available to him with regard to the implementation of his judgment because res
judieata will apply full force to bar successive declaratory judgment actions.
III. Res Judicata is Applicable to Bowling and Baze's Administrative
Procedure Act Claim and Bars Their Second Declaratory Judgment Action
Appellants responded to the June 19, 2008 Order directing supplemental
briefing with a contention that res judicata and its related doctrines of claim
preclusion and the rule against splitting causes of action should have no
bearing on this case because, as affirmative defenses pursuant to CR 8 .03,
10
those matters were waived when the Department failed to raise them in the
first responsive pleading. Certainly, as a general rule, failure to assert timely
an affirmative defense waives that defense and precludes its consideration by
the trial court and. this Court . Watts v. K .S . &, H . , 957 S .W.2d 233 (Ky . 1997) .
Nevertheless, this rule does not preclude courts from raising the issue of res
judicata or its related doctrines sua sponte in a declaratory judgment action.
KRS 418.065 recognizes the broad rights accorded courts in declaratory
judgment actions:
The court may refuse to exercise the power to
declare rights, duties or other legal relations in any
case where a decision under it would not terminate
the uncertainty or controversy which gave rise to
the action, or in any case where the declaration or
construction is not necessary or proper at the time
under all the circumstances. The appellate court in
its consideration of the case, shall not be confined
to errors alleged or apparent in the record. When,
in its opinion, further pleadings or proof is
necessary to a final and correct decision of the
matters involved, or that should be involved, it shall
remand the case for that purpose ; or if in its
opinion the action is prematurely brought, or where
a ruling in the appellate court is not considered
necessary or proper at the time under all the
circumstances, it may direct a dismissal without
prejudice in the lower court.
The first sentence of this statute allows the trial court to decline to exercise its
jurisdiction when "it is not necessary or proper at the time under all the
circumstances," a firm basis for invoking sua sponte an overlooked legal
doctrine such as res judicata . The second sentence provides that appellate
courts "shall not be confined to errors alleged or apparent in the record" and,
thus, gives appellate courts similar discretion to apply controlling law
regardless of whether it has been raised by the litigants or addressed by the
trial court in a declaratory judgment action . Rea v . Gallatin County Fiscal
Court, 422 S.W.2d 134 (Ky . 1967) . These specific provisions applicable only in
declaratory judgment actions should not be viewed as a judicial safety net,
relieving litigants of the need to consider carefully their responsive pleadings,
but they indisputably allow both trial and appellate courts to reach those
issues deemed necessary for proper resolution of a declaratory judgment
action . Accordingly, if otherwise relevant, res judicata may be applied in a
declaratory judgment action despite a failure to raise the defense affirmatively
in a responsive pleading. Finally, there is nothing unreasonable about a court
raising such potentially dispositive issues when the parties, as here, have been
given a full opportunity to address those issues, through briefs and oral
arguments .
Substantively, res judicata applies to bar consideration of a claim that.
was, or could have been, brought in prior litigation between the parties. This
"elementary" rule has been long-honored in Kentucky jurisprudence .
The rule is elementary that, when a matter is in
litigation, parties are required to bring forward their
whole case ; and `the plea of res judicata applies not
only to the points upon which the court was required
by the parties to form an opinion and pronounce
judgment, but to every point which properly belonged
to the subject of litigation, and which the parties,
exercising reasonable diligence, might have brought
forward at the time .' Davis v. McCorkle , 77 Ky. [ 14
Bush] 746 (1879) ; Williams v. Rogers, 77 Ky. [14 Bush]
776 (1879) ; Hardwicke v. Young, [110 Ky . 504] 62 S .W.
10(1906) .
Combs v. Prestonsburg Water Co. , 260 Ky . 169, 84 S .W.2d 15, 18 (1935) .
Drawing on these ancient cases, the Combs court concluded "the rule that
forbids parties from asserting rights or defenses by sporadic piecemeal
precludes them from asserting again anything incident to, and, n=ecessarily
connected with, the subject-matter of the former litigation which might have
properly been interposed . . . therein ." Id.
In an effort to avoid the res judicata bar, Appellants note a recent
formulation of the rule wherein this Court stated that when a plaintiff "sue[s] a
defendant in regard to a single transaction or event, [that plaintiff] must raise
all claims arising from that transaction or event." Watts, supra , 957 S .W.2d at
236 . Focusing on the term "transaction", Appellants maintain that
Baze/Bowling I was about the actual implementation of the lethal injection
protocol and its constitutionality while this litigation involves a different
"transaction", namely the manner of the adoption of the protocol by the
Department . Appellants' distinction is purely artificial . The transaction at
issue here, for each of the Appellants, is the implementation of his death
sentence and any and all claims available to him to challenge that
implementation on whatever grounds must be brought in the first action or be
forever barred by res judicata. As to Appellants Bowling and Baze,
Baze/Bowling-I was their first action and their Administrative Procedures Act
claim, clearly available to them at the time, should have been included in that
action. Res judicata bars consideration of this, the second declaratory
judgment action, filed by those two Appellants. Appellant Brian Moore has not
previously filed an action challenging the implementation of his death sentence
and consequently his APA claim is cognizable.
IV. The Lethal Injection Protocol Must Be Promulgated as an
Administrative Regulation
The general matters for which an administrative body in the Executive
Branch of our government, such as the Department, must adopt administrative
regulations are identified in KRS 13A .100 entitled "Matters Which Shall Be
Prescribed by Administrative Regulations ." The part of the statute pertinent to
this case provides :
Subject to limitations in applicable statutes, any
administrative body which is empowered to
promulgate administrative regulations shall, by
administrative regulation prescribe, consistent
with applicable statutes :
(1) Each statement of general applicability,
policy, procedure, memorandum, or other form
of action that implements; interprets ; prescribes
law or policy; describes the organization,
procedure, or practice requirements of any
administrative body; or affects private rights or
procedures available to the public;
KRS 13A .100 (1) . Because the semi-colons may cause some confusion, a more
helpful reflection of the legislative intent is the definition of "administrative
regulation" . KRS 1.3A.010(2) provides in relevant part:
(2) "Administrative regulation" means each statement
of general applicability promulgated by an
administrative body that implements, interprets, or
prescribes law or policy, or describes the organization,
procedure, or practice requirements of any
administrative body . The term includes an existing
administrative regulation, a new administrative
regulation, an emergency administrative regulation, an
administrative regulation in contemplation of a
14
statute, the amendment or repeal of an existing
administrative regulation, but does not include :
(a) Statements concerning only the internal
management of an administrative body and not
affecting private rights or procedures available to the
public ;
The Department is clearly "empowered to promulgate administrative
regulations," KRS 13A.100, as reflected in numerous statutes where the
Department itself or through its head, the Secretary of the Justice and Public
Safety Cabinet, is specifically directed to adopt administrative regulations. The
Department is authorized by KRS 197 .020 to adopt regulations regarding the
official conduct of Department personnel and the "government of the prisoners
in their deportment and conduct." The Secretary is given broad authority in
KRS 196 .035 to promulgate administrative regulations he deems "necessary or
suitable for the proper administration of the functions of the cabinet or any
division in the cabinet." In fact, the current volumes of the Kentucky
Administrative Register contain approximately 70 pages of regulations
promulgated by the Department addressing such matters as how frequently jail
inmates' sheets and pillowcases shall be cleaned, 501 KAR 3 :080, and the level
of lighting in specific areas of a jail, 501 KAR 3 :050, Section 6. In 501 KAR
6:020, Section 1, various Corrections Policies and Procedures are incorporated
by reference, including Corrections Policy and Procedure 9 .5 (CPP 9 .5)
discussed above pertaining to "Execution" as well as policies regarding the
"Nutritional Adequacy of Inmate Diet"; "Hair, Grooming and ID Card
Standards" and "Inmate Packages ." The preamble to this particular regulation
notes that the administrative regulation is to "comply with the accreditation
standards of the American Correctional Association ."
Despite the fact that portions of the Department's policy regarding
execution have been promulgated as a regulation, the Department maintains
and the circuit court concluded that the lethal injection procedures are
"matters of internal management . . . not affecting private rights" as referenced
in KRS 13A.0 10(2)(a) . As for CPP 9 .5, which was clearly adopted as an
administrative regulation, the Department characterizes it as establishing the
public components of the execution process including procedures for
attendance by the public and coordination of media activities . The
Department's position does not withstand careful scrutiny.
First, it is apparent that the lethal injection protocol is solely for the
purpose of implementing the death penalty provided for by the General
Assembly in KRS 431 .220 . This alone brings it within the ambit of KRS
13A.100 (1) and supports its promulgation as a regulation .2 Moreover, the
"private rights" of those individuals being executed by the Commonwealth are
invariably affected by the manner in which the lethal injection is administered,
again supporting promulgation . KRS 13A .100(1) ; KRS 13A.010(2)(a) . Finally,
the Department's own CPP 9 .5 belies any suggestion that the execution
protocol is a matter of internal management which should not be promulgated
Specifically, KRS 13A. 1 00(l) provides that an authorized body "shall, by
administrative regulation prescribe, consistent with applicable statutes : (1) Each
statement of general applicability, policy, procedure, memorandum or other form of
action that implements . . . law or policy . . . . " The dissent does not acknowledge
this statute, bypassing the legislature's directive on administrative regulations to
focus solely on the "private rights or procedures" language of KRS 13A.0 10(2)(a) 16
as an administrative regulation . CPP 9 .5 addresses where the inmate shall be
housed in the hours prior to execution; the presence of both an attorney from
the Department's legal office and a public information officer to assist the
warden with legal and media matters respectively- , and the responsibilities of
the warden during the "death watch and execution" including the necessity of
designating a deputy warden to oversee the operation of the institution until
the warden's execution responsibilities conclude . Contrary to the Department's
position, these specific matters extend well-beyond the public components of
the execution process and, by adopting this policy as a regulation, the
Department certainly claimed no right to prevent its disclosure on grounds of
"internal management ."
Maryland's highest court recently addressed whether that state's
administrative procedure act required Maryland's lethal injection protocol to be
adopted as a regulation . Evans v. State, 396 Md . 256, 914 A.2d 25 (2006) .
The Maryland Department of Corrections (DOC) contended the protocol did not
have general application, concerned only the DOC's internal management and
did not affect the rights of the public. The court rejected all three contentions
beginning with the argument that the Execution Operations Manual (EOM) was
not a generally applicable policy:
(T)here can be no legitimate doubt that the
portions of the EOM that govern the method of and
procedure for administering the lethal injection have
general application and future effect, were adopted to
detail or carry out a law that DOC administers, and
govern the procedure of DOC . They have general
application and future effect because they
comprehensively govern the manner in which every
17
death sentence is implemented . Unquestionably, they
were adopted, and, indeed, it is their sole purpose and
function, to carry out the mandates of CS §§ 3-905
and 3--906 and add details to the procedure that are
unaddressed by the statute. They clearly are within
the ambit of S(a § 10-101 (g) (1) [the Maryland code
provision defining an administrative regulation .]
914 A.2d at 78. As for the internal management argument, the Maryland court
noted that such matters are those "that are purely of concern too the agency
and its staff." Id . at 79 citing Massey v. Dept. of Public Safety and Correctional
Services, 389 Md. 496, 520, 886 A.2d 585, 599 (2005). The operative test
bears particular attention :
The real test of whether a DOC Directive (or
other policy statement) is exempt from the APA
requirements because it concerns only the internal
management of the agency and does not affect public
rights is whether, given. the nature and impact of the
Directive, the Legislature intended that the agency be
free to adopt, change, or abrogate the Directive at will,
without any public input or legislative review.
914 A.2d at 79 . Applying this test, the Evans Court concluded that the
Maryland legislature never intended to leave to the DOC, without any oversight,
"unbridled authority to determine and then change at will, as a matter of
internal management, how (the death penalty) statute is to be implemented."
Id. at 80 . In closing, the Maryland Court of Appeals concluded that decisions
regarding the drugs employed, the manner of their administration and similar
issues affect "not only the inmates and the correctional personnel, but the
witnesses allowed to observe the execution and the public generally, through
its perception of the process." Id. Ultimately, the Evans Court declared the
challenged execution protocol ineffective and unusable until adopted in
accordance with Maryland's administrative procedures act.
The Supreme Court of Tennessee reached a contrary conclusion
regarding whether that state's corrections department had tea adopt its lethal
injection protocol as a rule in conformity with Tennessee's Uniform
Administrative Procedures Act (UAPA) . In Abdur'Rahman v . Bredesen, 181
S .W .3d 292 (Tenn . 2005) the Court began by noting the protocol did not fit the
definition of a "rule"
First, the lethal injection protocol is not a rule as
defined by the UAPA. Tenn . Code Ann . § 4-5-102(10) .
The protocol instead fits squarely within two
exceptions to the meaning of "rule" : statements
concerning only the internal management of state
government and not affecting private rights privileges
or procedures available to the public, Tenn. Code Ann .
4-5-102(10)(A), and statements concerning inmates
of a correctional or detention facility, Tenn . Code Ann.
§ 4-5-102(10)(G) .
181 S .W. 3d at 311-12 . Second, the Court concluded that the legislature had
granted the corrections department broad discretionary powers and that the
public notice, public hearing and other requirements of the UAPA were "`simply
not realistic requirements for implementing procedures that concern the
intricacies and complexities of the prison environment."' Id . at 312 (citation
omitted) . Finally, and somewhat curiously, even though the Tennessee statute
regarding capital punishment generally, and the lethal injection method
specifically, authorized the corrections department to promulgate "necessary
rules and regulations" to implement it, the Tennessee Supreme Court noted
that the statute did not expressly reference the UAPA, thereby supporting the
conclusion that the UAPA was inapplicable .
Although the issue before this Court is ultimately one of construction of
Kentucky statutes, Evans is instructive as to the limitations of the."internal
management" exception . Like Maryland's highest court, this Court finds that
the lethal injection protocol is not an issue "purely of concern" to the
Department and its staff. Nor is there any basis for concluding that the
Kentucky General Assembly intended for the Department to be able to modify
at will, without any oversight, the manner in which the Commonwealth's most
serious punishment is meted out. As for the Tennessee Supreme Court's
contrary conclusion, Kentucky's Administrative Procedures Act does not have
an exception on which that Court relied, i.e. the exception for "statements
concerning inmates of a correctional or detention facility." Moreover, to the
extent the Tennessee Court relied on the "internal management" exception,
which Kentucky law does have, the Court rather summarily cited it without
any attempt to explain how implementation of the death penalty qualifies as a
matter of internal corrections department management . In short, nothing in
Abdur'Rahman persuades us that the Kentucky Administrative Procedures Act
dictates a similar conclusion .
3
Less than sixteen months following Abdur'Rahman , Tennessee Governor Phil
Bredesen, finding a review had "highlighted deficiencies in the written procedures
intended to insure that all legal executions will continue to be carried out
appropriately" and that "administration of the death penalty in a constitutional and
appropriate manner is a responsibility of the highest importance," revoked all of
Tennessee's lethal injection and electrocution protocols. He directed the
Commissioner of Corrections to initiate a comprehensive review of the protocols and
20
Finally, the Department maintains that it is prohibited from adopting
regulations to implement the lethal injection statute because KRS 13A .120 (1)
(a) states an administrative body "may promulgate administrative regulations
to implement a. statute. only when the act of the General Assembly creating or
amending the statute specifically authorizes the promulgation of administrative
regulations" or such regulations are required by federal law. This statute is
admittedly somewhat perplexing because it appears to contradict KRS 13A.1.00
which, as noted above, provides that
[s]ubject to limitations in applicable statutes, any
administrative body which is empowered to
promulgate administrative regulations shall, by
administrative regulation prescribe, consistent with
applicable statutes :
(1) Each statement of general applicability, policy,
procedure, memorandum, or other form of action that
implements; interprets ; prescribes law or policy;
describes the organization, procedure, or practice
requirements of any administrative body; or affects
private rights or procedures available to the public.
At first glance, this section's broad mandate that authorized agencies shall
prescribe regulations for, among other things, policies and procedures affecting
private rights, seems at odds with KRS 13A . 120's requirement that statutes not
best practices in other states and then to establish new protocols and procedures
for administering death sentences . State of Tennessee, Executive Order by the
Governor No. 43 (Feb . 1, 2007) . In Harbison v. Little, 571 F.3d 531 (6th Cir. 2009)
the U.S. Court of Appeals for the Sixth Circuit noted that the Commissioner
appointed a committee which formulated a revised protocol . The committee met
numerous times and held a public hearing before issuing its findings, Workman v.
Bredesen , 486 F.3d 896, 902 (6th Cir. 2007), which are set forth as an Appendix to
the Workman opinion . See 486 F.3d at 913-921 . Thus, following Abdur'Rahman ,
Tennessee's Governor accomplished through executive order the review and public
hearing components which would have occurred had the Tennessee Supreme Court
ruled in the manner that this Court is ruling today.
21
be implemented by regulation unless the regulation is specifically authorized
by the statute . The conflict, however, is resolvable by application of traditional
statutory construction principles .
. In construing -these statutes our goal, of course, is to give effect to the
intent of the General Assembly, and we derive that intent, if at all possible,
from the plain meaning of the language the General Assembly chose . We
presume, in a case such as this one of related statutes, that the General
Assembly intended for the statutes to be construed together and for both to
have meaning. We also presume that the General Assembly did not intend an
absurd result or an unconstitutional one . Kin Drugs, Inc . v . Commonwealth
of Kentucky, Revenue Cabinet , 250 S .W .3d 643, 645 (Ky. 2005) ; Mullins v.
Commonwealth , 956 S.W.2d 210 (Ky. 1997) . These statutes may be
harmonized by noting that KRS 13A.120 provides for when regulation is
permitted while KRS 13A .100 provides for when regulation is required.`
First, KRS 13A.120 limits regulatory authority by requiring every
assertion of such authority to be justified by, and to be an implementation of, a
4
While we conclude that KRS 13A.100(1) and KRS 13A.120(1) are fully reconcilable,
it is worth noting that were they thought to conflict, the more recently enacted
statute, KRS 13A.100(1), which the General Assembly adopted in 1990 (1990 Ky.
Acts Ch. 516), would control over KRS 13A.120, which was adopted in 1986 (1986
Ky. Acts Ch. 499) . Troxell v. Trammell , 730 S.W.2d 525, 528 (Ky. 1987) ("Our rule
[ ] of statutory construction [is] that . . . a later statute is given effect'over an earlier
statute.") Brown v. Hoblitzell , 307 S.W.2d 739, 744 (Ky. 1956) (noting that while
every effort must be made to harmonize statutes on the same general subject, "[i]f
the conflict cannot be reconciled, the later statute controls") . Thus, KRS
13A . 100(1)'s requirement that administrative rules "that implement . . . law" or
"affect[ing] private rights or procedures available to the public" be promulgated as
regulations would mandate regulation here even if KRS 13A.120(1) were thought to
provide otherwise .
22
statute expressly granting such authority. It does not require, as the
Department maintains, that every statute the agency might be called upon to
interpret and implement include the regulatory grant . That would be an
impossible task for the General Assembly and would render meaningless in
part the many statutes establishing agencies and granting general regulatory
authority, which is the General Assembly's usual approach to that task. The
Department's construction would also render a host of Kentucky regulations
promulgated pursuant to such general grants of regulatory authority
completely invalid . These results were clearly not the General Assembly's
intent and so argue conclusively against the construction urged by the
Department .
Although KRS 13A .120 does not require that every statute bearing upon
an agency's duties and authority include the regulatory grant, it does, as
noted, require that every regulation be justified by an express grant of
regulatory authority clearly embracing that regulation . That requirement is
met here, as the Department's regulatory authority over executions is clearly
included within the authority granted by KRS 197 .020(1), which provides in
pertinent part that
[t]he Department of Corrections shall : (a) Promulgate
administrative regulations for the government and
discipline of the penitentiary, for the government and
official conduct of all officials connected with the
penitentiary, and for the government of the prisoners
in their deportment and conduct .
An execution, of course, is one of the most serious official acts carried out by
penitentiary officials and the most serious act of governance over a prisoner .
23
This grant of regulatory authority satisfies KRS 13A.120, and thus regulation is
permitted. Indeed, KRS 197 .020(l) not only permits the promulgation of
regulations governing executions, it mandates it. Regulation is also mandated
by KRS 13A.1 OQ, which requires regulation if, as here, the regulation will
prescribe statements of general applicability which implement laws (such as
KRS 431 .220) or affect private rights . The bottom line, in other words, is that
the Department is not prohibited from adopting regulations to implement the
death penalty through lethal injection simply because KRS 431 .220 contains
no express reference to the adoption of regulations.
Having concluded that our Administrative Procedures Act mandates that
the lethal injection protocol be promulgated as a regulation to the extent it
affects private rights, it is nonetheless apparent that there may well be minor
issues pertinent to an execution which truly are matters of internal
management . The identities of the execution team, the storage location of the
drugs and other security-related issues can be classified properly as purely
issues of internal management . The drug protocol outlined in Baze v. Ree!,j,
-U .S .-, 170 L. Ed . 2d at 429-430, however, indisputably affects private
rights and must be properly adopted pursuant to KRS Chapter 13A before the
Department proceeds with further executions .
Finally, while we understand the circuit court's conclusion that the
bench trial in, Baze/Bowling_l was an effective public hearing on the current
protocol, there is no legal basis for this Court deeming it a substitute for what
the General Assembly has required in our Administrative Procedures Act.
When a matter must be prescribed by administrative regulation pursuant to
KRS 13A .100, the Act must be complied with in all respects . The Department
is obligated to proceed pursuant to KRS Chapter 13A as to all aspects of the
lethal injection protocol except matters of mere internal management such as
those noted above .
CONCLUSION
The trial court was authorized pursuant to CR 59 .05 to vacate its original
order and enter its December 27, 2006 order. That order is affirmed, albeit on
different grounds, as to dismissal of Appellants Bowling and Baze's claims
because res judicata precludes consideration of a second declaratory judgment
action challenging implementation of their respective sentences of execution .
However, the trial court erred in concluding that the lethal injection protocol
was not subject to promulgation as an administrative regulation pursuant to
KRS Chapter 13A and, therefore, the December 27, 2006 order is reversed as to
Appellant Moore. The Department of Corrections is required by Kentucky law
to promulgate a regulation as to all portions of the lethal injection protocol
except those limited issues of internal management that are purely of concern
to Department personnel. Accordingly, the December 27, 2006 Order of the
Franklin Circuit Court is affirmed in part and reversed in part .
Minton, C.J. ; Noble and Schroder, JJ., concur. Cunningham, J .,
concurring in part and dissenting in part by separate opinion in which Scott,
J ., joins . Scott, J., concurring in part and dissenting in part by separate
opinion in which Cunningham and Venters, JJ., join .
CUNNINGHAM, J., CONCURRING IN PART AND DISSENTING IN PART: I
concur with the majority as to the res judicata issue as to Bowling and Baze .
However, I join, and add to, the dissent of Justice Scott . With all due respect, I
find no logical justificatiorJor extending the holding to Appellants, Bowling and
Baze.
In fact, it seems contradictory .
Says the majority concerning the claims of Bowling and Baze: "Res
judicata bars consideration of this the second declaratory judgment action,
filed by those two Appellants ."
But illogically - it seems to me - this Court proceeds to do just that.
The opinion goes on to say: "Finally while we understand the circuit
court's conclusion that the bench trial in Baze/Bowling was an effective public
hearing on the current protocol, there is no legal basis for the Court deeming it
a substitute for what the General Assembly has required in our Administrative
Procedures Act."
It puzzles me as to how the barred claims of Bowling and Baze can be
sua sponte piggy-backed onto the viable action of Moore.
As Justice Scott points out, the case of Bowling and Baze cries out for
closure . Almost two decades have elapsed since the Bowling crime and
eighteen years since the crimes of Baze . The latter case has been to the U.S .
Supreme Court and back.
For some reason, in October 2007 - over two years ago - we effectively
stayed this civil action while the U.S. Supreme Court considered the totally
unrelated lethal injection issue .
By requiring promulgation of the subject protocol, we are inviting more
delay - maybe much more delay. We are implanting another moving part into
the already lumbering apparatus ~of our death penalty appellate process.
We have executed 165 persons in. this state without the regulation. now
deemed required by the majority. These include the latest execution of Marco
Chapman after this action was filed.. His lawyers asked that his case be stayed
until a ruling was made on this very issue. It was denied, however, after
Chapman himself asked that it be refused .
The promulgation process will invite further attacks upon the convictions
of these men . For instance, KRS 431 .220 allows Baze and Bowling up to
twenty days before their scheduled executions to choose electrocution instead
of lethal injection . On the twenty-first day, they can not only make that choice,
but then proceed to challenge the lack of promulgated regulation of the
electrocution protocol - an issue arguably not addressed by the majority
opinion . The answer would seem obvious . But such reality does not preclude
further filings, further briefing, further review by this Court, further delay .
There is no end to the creative mind of the condemned.
It seems to me that the majority opinion turns upon a sterile technicality.
It has nothing to do with a fair trial of Appellants . Nothing which affects the
severity of the punishment or the humaneness of the method employed . These
heavy issues have all been decided - one of them by the highest court of our
land . Our decision here today gives the guilty more time to live. It gives the
innocent families of the victims more time to suffer.
Scott, J ., joins .
SCOTT, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
Although I concur on all other grounds, I must respectfully dissent from my
esteemed colleagues' opinion requiring the Department of Corrections to
promulgate the lethal injection protocol as an administrative regulation before
proceeding with further executions .5 I dissent because the death penalty is not
a private right or procedure available to the public and the procedures used by
the Department of Corrections are statements of internal management
pursuant to KRS 13A.010(2)(a) . 6 Therefore, this is not a matter which requires
5
Both this Court and the United States Supreme Court recently approved the lethal
injection protocol at issue, holding that it did not violate the prohibitions against
cruel and unusual punishment set forth in Section 17 of the Kentucky
Constitution and the Eighth Amendment of the United States Constitution. Baze v .
Rees, 217 S .W.3d 207 (Ky. 2006); Baze v. Rees , U.S .-, 170 L.Ed .2d 420 (2008) .
Since its review by the Unites States Supreme Court, the lethal injection protocol
was used to carry out the execution of one inmate, Marco Chapman, on November
21,2008 .
KRS 13A.010 reads, in pertinent part:
(2) "Administrative regulation" means each statement of general
applicability promulgated by an Administrative body that implements,
interprets, or prescribes law or policy, or describes the organization,
procedure, or practice requirements of any administrative body. The
term includes an existing administrative regulation, a new administrative
regulation, an emergency administrative regulation, an administrative
regulation in contemplation of a statute, the amendment or repeal of an
existing administrative regulation, but does not include :
(a) Statements concerning only the internal management ofan
administrative body and not affecting private rights or
procedures available to the public . . .
(emphasis added) .
28
the promulgation of administrative regulations under Kentucky's
Administrative Procedures Act (APA) . 7
Currently, there are thirty-six inmates on death row in Kentucky's Thus,
it is erroneous to say that lethal injection is =a private right or procedure
available to the public, when Kentucky's "public" consists of more than 4 .2
million people, none of whom could unilaterally choose for the Commonwealth
of Kentucky to end their life by means of execution . Though the thirty-six
individuals on death row may be executed by the Commonwealth of Kentucky,
it is not because they possess this right. Rather, even if a defendant refused to
present mitigating evidence at trial and requested a sentence of death in his or
her plea agreement, the trial court would not be obligated to impose such
sentence. Chapman v . Commonwealth, 265 S .W.3d 156, 177 (Ky . 2007)
("Sentencing a defendant to death because the defendant volunteers to be
executed is improper and is an abuse of discretion .") . No person, not even one
convicted of a capital offense, has a "right" to the death penalty . As the death
penalty is not a private right or procedure available to the public pursuant to a
plain reading of KRS 13A.010(2)(a), the Department of Corrections should not
be required to promulgate administrative regulations concerning lethal
injection .
KRS 13A.100 describes the matters for which administrative regulations must be
promulgated . This statute is prefaced, however, with a statement which narrows
its reach: "[s]ubject to limitations in applicable statutes . . . ." KRS 13A.010(2)
provides such limitations.
8 Of the thirty-six death-row inmates, there are thirty-five males and one female.
29
In addition, by requiring these regulations, the majority adds a new
stratum to the already steep terrain which must be traversed before the
Commonwealth can carry out an inmate's death sentence . If a civil suit under
Kentucky's APA can be used to further delay executions time and time again,
where will we find the end of such measures? A multitude of new appeals from
this administrative process will now become the new "delay tool" in death
penalty protests.
In Abdur'Rahman v. Bredesen, 181 S.W .3d 292, 311-12 (Tenn . 2005), it
was argued that the procedures which made up the lethal injection protocol
constituted rules which had been adopted in violation of the state's Uniform
Administrative Procedure Act (UAPA) . The Tennessee Supreme Court, however,
held : "a `rule' does not include `[s]tatements concerning only the internal
management of state government and not affecting private rights, privileges or
procedures available to the public .
Id. at 311 (citing Tenn. Code Ann. 4-5-
102(10)(A)) . Just as in Tennessee, the Kentucky lethal injection protocol, is a
matter of the internal management of the Department of Corrections which
does not affect private rights or procedures available to the public pursuant to
KRS 13A.010(2)(a) . Rather, the lethal injection protocol fits neatly within the
exception provided by the statute . Id. 9
9
The majority attacks the relevancy of AbdurRahman for reasons that sixteen (16)
months after its rendition, the governor of Tennessee made a political decision to
revamp the execution procedures employed by the state. However, as previously
stated, the decision here turns on whether lethal injection affects a right or
procedure available to the public. That is the issue we were asked to address and
which we have addressed. Political decisions are rightfully the province of the
executive and legislative branches of government-not the judicial .
30
Moreover, the Tennessee Supreme Court held that the Department of
Corrections was not required to promulgate their lethal injection protocol before
proceeding with executions, in spite of statutory authorization . Under the
Tennessee lethal injection statute, Tennessee Code Annotated section'40-23114(c), the Department of Corrections was specifically authorized to promulgate
the regulations necessary to implement the statute . The court held that the
authority to make regulations regarding lethal injection is not tantamount to a
requirement to do so . Kentucky's lethal injection statute, KRS 431 .220,'°
provides no such direction to the Department of Corrections concerning the
promulgation of regulations .
Furthermore, it is not certain that lethal injection will be the means of
execution in the event that Appellants' death sentences are carried out. While
io KRS 431 .220 reads:
(1) (a) Except as provided in paragraph (b) of this subsection, every death
sentence shall be executed by continuous intravenous injection of a
substance or combination of substances sufficient to cause death. The
lethal injection shall continue until the prisoner is dead .
(b) Prisoners who receive a death sentence prior to March 31, 1998, shall
choose the method of execution described in paragraph (a) of this
subsection or the method of execution known as electrocution, which
shall consist of passing through the prisoner's body a current of
electricity of sufficient intensity to cause death as quickly as possible .
The application of the current shall continue until the prisoner is dead. If
the prisoner refuses to make a choice at least twenty (20) days before the
scheduled execution, the method shall be by lethal injection .
(2) All executions of the death penalty by electrocution or lethal injection
shall take place within the confines of the state penal institution
designated by the Department of Corrections, and in an enclosure that
will exclude public view thereof.
(3) No physician shall be involved in the conduct of an execution except
to certify cause of death provided that the condemned is declared dead
by another person.
KRS 431 .220 contains no directive requiring the Department . of Corrections to
promulgate regulations concerning lethal injection, it does contain another
requirement: that any inmate sentenced to death prior to March 31, 1998 is to
be given the choice between lethal injection and electrocution . KRS
431 .220(l)(b) . It is only after an inmate refuses to make this choice at least
twenty (20) days before their execution is scheduled to take place that lethal
injection is selected by default . Id. All three Appellants in this case were
sentenced to death before March 31, 1998-therefore, it is not even certain any
one of them will choose lethal injection as his method of execution. Since they
can opt out of lethal injection if they so choose, we should not consider their
claims that the Department of Corrections must promulgate the lethal injection
protocol as an administrative regulation.
And, even if we were to postpone Appellant Moore's execution until the
Department of Corrections promulgates these regulations, the same should not
be so for Appellants Baze and Bowling. As the majority held, their claims are
barred by resjudicata, or more particularly, the bar against splitting causes of
action. Both this court and the United States Supreme Court have held that
the lethal injection protocol used by the Commonwealth of Kentucky does not
violate their Eighth Amendment rights . See generally Baze, 217 S.W .3d 207;
Baze, 170 L.Ed.2d 420. Thus, since their action is barred, their judgment
should not be stayed .
Moreover, taking the majority's position to its ultimate conclusion, even
though resJudicata would bar Baze, Bowling, and Moore from bringing another
appeal, any other inmate sentenced to death prior to March 31, 1998 could.
choose electrocution as the manner in which his death sentence is to be
carried out, and then pursue lengthy and unnecessary appeals that would
force the Department of Corrections to promulgate administrative . regulations
regarding the procedures employed for electrocution. If this were to occur,
under the majority's reasoning, any inmate sentenced to death prior to March
31, 1998 (including the three Appellants in the case at bar) could opt for
electrocution as their means of execution, and their sentences could not be
carried out until the Department of Corrections promulgated such regulations .
Since 1911, the Commonwealth of Kentucky has used electrocution to
carry out death sentences . Neither before nor after the adoption of Kentucky's
APA has the Department of Corrections promulgated administrative regulations
regarding electrocution (as the majority is now requiring be adopted concerning
lethal injection) . While electrocution is still used in Kentucky, the
circumstances under which it may be employed are very limited : an inmate
sentenced to death prior to March 31, 1998 would have to choose electrocution
as the means by which his or her death sentence is to be carried out. It defies
reason that a method of execution employed since 1911 in Kentucky and not
used since 1997 would now-when it can be used in such limited
circumstances-be the subject of newly-promulgated regulations.
While recognizing the seriousness of the execution of an inmate, the
Department of Corrections, at some point, must be allowed to carry out the
sentences through procedures that have already been approved by the highest
Courts in both our State and our Nation .
Many years have gone by since these crimes deemed worthy of death have been
committed : over thirty
(30)yearsin the case of Appellant Moore, sqventeen (17)
years in the case of Appellant Bate, and nineteen (19) years in the case of
Appellant Bowling. These cases cry out for closure. The families of the victims
cry out for closure . The condemned are entitled to closure-not at their own
hands, but at the hands of an appropriate judgment . Respect for our law
erodes when timely punishment is not given its fair place upon the scales of
justice.
It is for these reasons that I dissent from the majority's opinion requiring
the Kentucky Department of Corrections to promulgate the lethal injection
protocol as an administrative regulation before conducting further executions.
Cunningham and Venters, JJ ., join this opinion .
COUNSEL FOR APPELLANTS,
THOMAS C . BOWLING, RALPH BAZE
AND BRIAN KEITH MOORE:
David Michael Barron
Department of Public Advocacy
100 Fair Oaks Lane
Suite 301
Frankfort, KY 40601
John Anthony Palombi
201 Monroe Street
Suite 407
Montgomery, AL 36104-3727
COUNSEL FOR APPELLEE,
KENTUCKY DEPARTMENT OF
CORRECTIONS:
John C . Cummings
Jeffrey Thomas Middendorf
Justice and Public Safety Cabinet
Office of Legal Services
125 Holmes Street
Second Floor
Frankfort, KY 40601-2108
Stephen D. Lynn
Justice and Public Safety Cabinet
Office of Legal Services
Funderburk Building
521 Lancaster Ave.
Richmond, KY 40475-3102
*uyrrutr (~ourf of ~irufurkV
6
2007-SC-000021-MR
THOMAS C . BOWLING,
RALPH GAZE
AND
BRIAN KEITH MOORE
APPELLANTS
ON APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE SAMUEL G. MCNAMARA, JUDGE
CASE NO. 06-CI-00574
V.
KENTUCKY DEPARTMENT
OF CORRECTIONS
APPELLEE
ORDER OF CORRECTION
Honorable David A. Smith's motion to remove his name from the opinion
rendered in the above-styled case, is granted.
The Opinion of the Court by Justice Abramson rendered on November
25, 2009, is hereby corrected by substitution of the attached page 35 in lieu of
page 35 of the original opinion and does not affect the holding of the original
Opinion.
ENTERED : January 4, 2010.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.