KENTUCKY DEPARTMENT OF CORRECTIONS AND COMMONWEALTH OF KENTUCKY, BY AND THROUGH JACK CONWAY, ATTORNEY GENERAL V. HONORABLE PHILLIP J. SHEPHERD, JUDGE FRANKLIN CIRCUIT COURT, DIVISION I AND GREGORY WILSON, ET AL.Annotate this Case
TO BE PUBLISHED
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COMMONWEALTH OF KENTUCKY,
BY AND THROUGH
JACK CONWAY, ATTORNEY GENERAL
IN- SUPREME COURT
HONORABLE PHILLIP J . SHEPHERD, JUDGE
FRANKLIN CIRCUIT COURT, DIVISION I
GREGORY WILSON ;
THOMAS CLYDE BOWLING;
RALPH BAZE ; AND
BRIAN KEITH MOORE
REAL PARTIES IN INTEREST
KENTUCKY DEPARTMENT OF CORRECTIONS
AND COMMONWEALTH OF KENTUCKY,
BY AND THROUGH JACK CONWAY,
IN SUPREME COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
FRANKLIN CIRCUIT COURT, DIVISION I
GREGORY WILSON ;
THOMAS CLYDE BOWLING;
RALPH BAZE ; AND
BRIAN KEITH MOORE
REAL PARTIES IN INTEREST
OPINION AND ORDER
protocol by administrative regulation,3 the Franklin Circuit Court granted the
inmates leave to reopen the case and amend their declaratory judgment
petition to incorporate the argument that the regulation did not comply with
the requirements of Kentucky Revised Statute (KRS) Chapter 13A, the statutory
chapter concerning administrative regulations.
The Franklin Circuit Court also allowed another death-row inmate,
Gregory L. Wilson, who had not been an original party, to intervene in the
reopened and amended declaratory judgment action . Wilson's death sentence
was imposed by the Kenton Circuit Court;4 and he moved to intervene in the
Franklin Circuit Court proceeding after the Governor signed a warrant on
August 25, 2010, for his execution to take place on September 16, 2010 . The
Kenton Circuit Court had refused to stay the execution on September 2, 2010 .5
Wilson sought injunctive relief from the Franklin Circuit Court, asking
that court to stay or enjoin the implementation of the death warrant against
him. The Franklin Circuit Court entered a written order, entitled "Temporary
issues of internal management that are purely of concern to Department
See 501 Kentucky Administrative Regulations (KAR) 16 :330 (Lethal injection
protocol adopted effective May 7, 2010) . Other regulations concerning
administration of the death penalty were also adopted effective May 7, 2010, and
are contained in 501 KAR Chapter 16.
See Wilson v. Commonwealth, 836 S.W.2d 872 (Ky. 1992) ; Wilson v.
Commonwealth, 975 S .W.2d 901 (Ky. 1998), cert. denied, 526 U .S. 1023 (1999) ;
Wilson v. Parker, 515 F.3d 682 (6th Cir. 2008), cert. denied in Wilson v. Simpson,
130 S . Ct. 113 (2009) .
The Kenton Circuit Court denied Wilson's motions for DNA testing, to prohibit
imposition of the death penalty, for a qualified protective order and to compel
production, and for a stay of execution. An appeal from that order is pending
before this Court in Wilson v. Commonwealth, 2010-SC-000573-MR.
Injunction Under CR 65.04," in which it granted Wilson's motion for injunctive
relief and a stay of "any implementation of the death warrant signed in his case
by the Governor ." And the court restrained and enjoined the Commonwealth
"from taking any steps to implement the administrative regulations at issue in
this action (501 KAR Chapter 16), or to otherwise execute the Governor's death
warrant, until the entry of a final judgment in this action, or until further
orders of this Court entered after adequate notice and a hearing."
The Franklin Circuit Court explained its reasoning for granting Wilson
injunctive relief, stating "there are at least two substantial questions of law
regarding the validity of the administrative regulations that require the
[Franklin Circuit Court] to issue an injunction to preserve the status quo until
the entry of a final judgment ." First, the circuit court perceived an apparent
conflict between the regulations, which the circuit court interpreted to require
a combination of drugs in administering lethal injections,6 and KRS 431 .220,
which the circuit court interpreted to allow for use of either a single drug or a
combination of drugs in administering lethal injections .? Second, the circuit
court found a lack of any provision in the regulations prohibiting the execution
of insane or mentally retarded inmates and lack of "adequate safeguards" in
See 501 KAR 16 :0330 § 3.
KRS 431 .220(1)(a) provides, in pertinent part, that except where a death-row
inmate received a death sentence by a certain date and chooses electrocution,
"every death sentence shall be executed by continuous intravenous injection ofa
substance or combination of substances sufficient to cause death." (emphasis
the ,regulations to prevent the execution of insane or mentally retarded
inmates, creating constitutional and statutory violations .$
Petitioners contend that these two issues were not raised by the parties
to the declaratory judgment action but were improperly interjected into the
action by the Franklin Circuit Court on its own motion.
III. THE RELIEF SOUGHT BY PETITIONERS IN THIS COURT.
The Petitioners ask this Court for a writ to
" dismiss the underlying declaratory judgment action now pending in the
Franklin Circuit Court;
" prohibit the Franklin Circuit Court from entering any orders concerning
matters already determined by the Kenton Circuit Court or that are
pending before this Court; and
" issue an order superseding and dissolving the temporary injunction
that stayed Gregory Wilson's execution.
The Commonwealth clearly requests extraordinary relief in the form of a
writ under Kentucky Rules of Civil Procedure (CR) 76.36 and Ky. Const.
§ 110(2) (a) from the temporary injunction issued by the Franklin Circuit Court;
but the Commonwealth also invokes CR 65 .07, which is nominated as
pertaining to "Interlocutory relief in Court of Appeals prior to final judgment,"
apparently as a precautionary measure . Although CR 65 .47 expressly provides
that a party affected by entry of a temporary injunction - such as that at issue
We express no opinion on the merits of the Franklin Circuit Court's holdings on
here -- may seek relief in the Court of Appeals,9 this rule does not expressly
allow such relief from this Court. The Commonwealth argues that the instant
action is still proper in this Court primarily because the parties seeking relief
below are death-row inmates seeking a declaratory judgment regarding the
state's death-penalty protocols.
The Real Parties in Interest (death-row inmates including Wilson) 10 do
not take issue with this action being filed in this Court, but the Real Parties in
Interest argue that the Commonwealth may not seek a writ for relief from the
temporary injunction. They contend that the normal standard of review for a
temporary injunction under CR 65 .07 should apply rather than the standard
for determining availability of a writ, which they contend to be an easier
standard to meet. But the Commonwealth requests extraordinary relief beyond
merely dissolving the temporary injunction --- the Commonwealth asks us to
order the Franklin Circuit Court to dismiss the declaratory judgment action
and order that court to desist from entering orders pertaining to matters
decided by or pending before this Court or the Kenton Circuit Court. So we will
construe the instant action as a writ petition rather than as a CR 65 .07
motion, although we also review the granting of the temporary injunction under
CR 65.07 standards in order fully to address the Commonwealth's concerns
CR 65.07(1)(a) .
io Other death-row prisoners also appear to be affected by the Franklin Circuit
Court's temporary injunction, which enjoins the Commonwealth from
implementing the regulations establishing a death penalty protocol (501 KAR
Chapter 16) until the Franklin Circuit Court enters final judgment in the
declaratory judgment action or until further orders of the Franklin Circuit Court
after adequate notice and a hearing.
that the temporary injunction was improperly entered . Because we decline to
issue a writ in the instant action, we also decline to hold that an attempt to
vacate a stay of execution must always be filed and reviewed as a petition for
extraordinary relief under CR 76 .36 or as a motion for interlocutory relief from
a temporary injunction under CR 65 .07 .
We recognize that the. Petitioners urge this Court to hold that a writ
action is an appropriate vehicle for challenging a stay of execution, but we
decline to do so in this case because resolution of that issue is not necessary to
decide this case . Furthermore, we decline the Petitioners' invitation to adopt
standards from federal cases for assessing writ actions concerning stays of
execution because Kentucky case law has established standards for assessing
IV . ANALYSIS.
A. We Will Assume this Original Action is Properly Filed in this Court.
Although the Real Parties in Interest argue in their response to the
petition that it was improper for the Commonwealth to seek a writ, they do not
argue that the Commonwealth should - have sought a writ from the Court of
Appeals rather than this Court." So we will not attempt to resolve any actual
or apparent controversy regarding whether this original action seeking a writ
should have been properly filed in the Court of Appeals rather than this
The Response states that: "Real Parties in Interest [the death-row inmates] agree
that this Court is the proper forum. However, a writ is not the proper procedural
vehicle for invoking this Court's jurisdiction and authority."
Court 12 but will simply assume, for purposes of resolving this case only, that
this original action was properly filed in this Court rather than in the Court of
B. We Decline to Issue a Writ.
[WJhether to grant a writ is always discretionary" 13 even when a
petitioner for a writ makes the required showings to meet the stringent
standard for making writ relief possibly available . 14 Our precedent requires
Although this Court generally has only appellate jurisdiction, this Court also has
the power under the Kentucky Constitution to issue writs -- not just hear appeals
of writ cases in certain circumstances. Specifically, this Court has the "power to
issue all writs necessary in aid of its appellate jurisdiction, or the complete
determination of any cause, or as may be required to exercise the control of the
Court of Justice ." Ky. Const. § 110(2)(a) . The Court of Appeals also has the power
to issue writs, and Kentucky Supreme Court Rules (SCR) 1 .030(3) (concerning the
powers of the Court of Appeals) even specifies that "[p]roceedings in the nature of
mandamus or prohibition against a circuit judge shall originate in the Court of
Appeals ." But CR 76.36 provides that "[o]riginal proceedings in an appellate court
may be prosecuted only against a judge or. agency whose decisions may be
reviewed as a matter of right by that appellate court[,]" which seems to suggest that
an original action seeking a writ would be properly filed in the Supreme Court if a
matter-of-right appeal of the trial judge's decision would be filed in the Supreme
Court. Because the instant writ action concerns the propriety of the Franklin
Circuit Court's granting a temporary injunction, we also note that CR 65 .07(1) also
provides that one "may" seek relief from the Court of Appeals when a trial court
grants a temporary injunction .
See also Hilbert v. Seay, 2008-SC-000312-OA, 2008 WL 3890410 at *3 (Ky.
Aug. 21, 2008) ("a petition for a writ of prohibition may -- but not must - be filed in
the Supreme Court, bypassing its traditional forum in the Court of Appeals, when
it concerns a decision that may be reviewed by this Court as a matter of right.
Assuredly, this concerns instances wherein the death penalty is being sought and
double jeopardy is the issue.") . We express no opinion on whether this writ action
could or should have been filed in the Court of Appeals ; but, given the parties'
apparent agreement that the action is properly before us rather than the Court of
Appeals, we simply assume, for resolution of this case only, that the present writ
action is properly resolved by this Court rather than the Court of Appeals.
Cox v. Braden, 266 S.W.3d 792, 797 (Ky. 2008) (internal quotation marks omitted) .
Id. ("a writ is never mandatory, even upon satisfaction of one of the tests laid out in
Hoskins" -- referring to writ standard established in Hoskins v. Maricle,
150 S.W.3d 1, 10 (Ky. 2004)) .
that to be able possibly to obtain a writ for extraordinary relief - such as a
writ of prohibition or a writ of mandamus - one must show that:
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) that 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
But even where a petitioner accomplishes the difficult task of making one of
these two alternative showings, the issuance of a writ is not mandatory . 16 And
given the magnitude of the issues presented here concerning not only whether
particular individuals might be properly executed by the state but also the
validity of our state protocol for execution and the inherent difficulties in
determining the merits of such issues upon the limited record in a writ case, 17
we will not exercise our discretion to issue a writ here, even assuming that the
Petitioners have made the required showings to make a writ available. We
certainly recognize that some view any delay in carrying out the death
sentences of Wilson and other death-row inmates as an injury and an injustice
to the Commonwealth, but we also believe that granting the requested writ
would not further Commonwealth's officers' efforts to meet obligations to
See, e.g., Estate of Cline v. Weddle, 250 S.W.3d 330, 334 (Ky. 2008), quoting
Hoskins, 150 S.W.3d at 10 .
Cox, 266 S .W.3d at 797 .
See id. at 795 (noting that writ actions are decided upon a limited record and
bypass the normal appellate procedure, thus, increasing the chance of incorrect
rulings unjustly affecting litigants) .
comply with the law in administering the death penalty. In short, we do not
believe it would be in the public interest to grant the relief requested by the
Petitioners in this writ proceeding .
The Petitioners request not only that this Court dissolve the temporary
injunction staying Wilson's execution but also that this Court prohibit the
Franklin Circuit Court "from entering any orders concerning matters already
determined by the Kenton Circuit Court or that are pending before this Court"
and order the Franklin Circuit Court to dismiss the death-row inmates'
declaratory judgment action challenging the validity of the execution protocol .
We do not believe our issuing a writ to interfere with the Franklin
Circuit's Court's control of the case in this manner would be in the public
interest . We recognized the important public interest in establishing a valid
execution protocol in Bowling v. Kentucky Department of Corrections and will
not order the Franklin Circuit court to dismiss the declaratory judgment action
challenging the validity of this protocol. And we discern no reason to enter an
order limiting what matters may be considered by the Franklin Circuit Court,
especially because it appears to us that the Franklin Circuit Court properly
focused its attention on the validity of the execution protocol. 18 Any possible
The Franklin Circuit Court noted that "[t]he facts related to Wilson's prosecution
are not directly relevant to the validity of the plaintiffs' challenge to the
administrative regulations at issue here, but are noted because they are relevant
for purposes of balancing the equities in considering his motion for injunctive
relief." The Franklin Circuit Court noted apparent irregularities in Wilson's trial
and found there was a good faith basis to believe he may be ineligible for the death
penalty due to mental retardation in weighing the equities for granting injunctive
relief. It also included in its conclusions of law its determination that Kentucky's
overstepping into areas more properly determined by other courts can be
corrected on appeal of the final judgment ultimately entered in the declaratory
Although we recognize the Commonwealth's concern over delays in
carrying out its sentences, the stay of execution entered by the Franklin Circuit
Court is of little practical effect now because Wilson's death warrant has
expired; and we are aware of none others pending. We also recognize that the
temporary injunction essentially forbids the Commonwealth from performing
any more executions until the Franklin Circuit Court enters final judgment in
the declaratory judgment action, so we are not proclaiming that the matter is
totally moot. Furthermore, Wilson's appeal of a Kenton Circuit Court order
denying him relief is currently pending before this Court . We believe that especially in the absence of any pending execution warrant - the wisest course
is simply to allow the current litigation to proceed. This includes the Franklin
Circuit Court declaratory judgment action and Wilson's appeal of the Kenton
Circuit Court's order.
V. NO ABUSE OF DISCRETION IN GRANTING
TEMPORARY INJUNCTION .
Not only do we believe that extraordinary relief in the nature of a writ is
inappropriate, but we discern no clear abuse of discretion in the Franklin
death penalty regulations contained no provisions establishing safeguards to
ensure that mentally retarded prisoners were not executed.
Circuit Court's granting of the temporary injunction. 19 The Franklin Circuit
Court appropriately balanced the equities in our view, stating as follows :
In balancing the equities, the Court recognizes that Wilson's death
penalty, as imposed by the trial court, has already been delayed
22 years by virtue of the post-conviction litigation . The hardship
imposed by this delay on the family and friends of [victim] Deborah
Pooley is significant. However, the hardship imposed on the
Commonwealth and the Department of Corrections, the only
adverse parties in this case, is not of that magnitude. Moreover,
the Commonwealth and the Department both have a legal
obligation to ensure that all statutory and constitutional
requirements have been fully complied with prior to any execution.
The public has a preeminent interest in ensuring that all public
officials comply with the law. The Court has found serious
questions about whether all statutory and constitutional
requirements have been met in the challenged administrative
regulations at issue here . Accordingly, this Court is duty bound to
resolve those questions before allowing those administrative
regulations to be implemented in such a final and irremediable
fashion as the execution of the death penalty.
And it granted the temporary injunction after making the required findings to
support granting a temporary injunction under our law,2e specifically finding:
that the plaintiffs have presented substantial legal questions about
the validity of the administrative regulations, that Wilson will
suffer irreparable harm in the absence of injunctive relief, and that
See Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 162 (Ky. 2009)
(trial court's grant of temporary injunction under CR 65 .04 is not to be disturbed
by appellate courts unless the trial court has clearly abused its discretion) .
See id. at 161-62, quoting Maupin v. Stansbury, 575 S.W.2d 695, 699 (Ky.App .
1978) ("First, the trial court should determine whether plaintiff has complied with
CR 65.04 by showing irreparable injury. This is a mandatory prerequisite to the
issuance of any injunction . Secondly, the trial court should weigh the various
equities involved . Although not an exclusive list, the court should consider such
things as possible detriment to the public interest, harm to the defendant, and
whether the injunction will merely preserve the status quo . Finally, the complaint
should be evaluated to see whether a substantial question has been presented . If
the party requesting relief has shown a probability of irreparable injury, presented
a substantial question as to the merits, and the equities are in favor of issuance,
the temporary injunction should be awarded. However, the actual overall merits of
the case are not to be addressed in CR 65.04 motions .") .
public interest favors maintenance of the status quo (including a
stay on any further executions) until there has been a final
decision on the merits of this case .
VI. CONCLUSION .
Accordingly, the Court ORDERS :
The petitions for writ are DENIED; and
All pending motions are DENIED as moot.
All sitting. Minton, C.J. ; Abramson, Noble, Schroder, and Venters, JJ.,
concur. Cunningham and Scott, JJ., dissent.
ENTERED: March 24, 2011 .