Full Opinion

RENDERED: SEPTEMBER 24, 2026 TO BE PUBLISHED Supreme Court of Kentucky 2026-SC-0053-OA COMMONWEALTH OF KENTUCKY PETITIONER IN SUPREME COURT V. 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 MANDAMUS The plaintiffs in the underlying lawsuit have received death penalty convictions; however, litigation concerning Kentucky’s procedures for implementation of the death sentence has been ongoing for two decades. The Commonwealth petitions this Court for a second-class writ ordering the circuit court to clarify that a temporary injunction that has been in place since 2010, does not bar the Governor from issuing a death warrant for inmate Ralph Baze. For the reasons stated herein, the petition is denied. I. FACTS AND PROCEDURAL BACKGROUND In 2006, numerous inmates filed the underlying lawsuit seeking declaratory and injunctive relief concerning Kentucky’s execution procedures. The inmates alleged that the Kentucky Department of Corrections (“DOC”) had implemented execution protocols without promulgating them as administrative regulations in accordance with KRS 1 Chapter 13A, Kentucky’s Administrative Procedures Act. The inmates sought to enjoin executions until lawful procedures were adopted and lawfully reviewed. After initially granting summary judgment to the inmates, the circuit court reversed course, vacated its order, and granted DOC’s motion to dismiss. The inmates appealed. This Court, in Bowling v. Kentucky Department of Corrections, 301 S.W.3d 478 (Ky. 2009), held that “[DOC] 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.” Id. at 492. Following our decision in Bowling, DOC promulgated new administrative regulations that became effective in 2010. The circuit court permitted the inmates to reopen their case and amend their declaratory judgment petition to incorporate the argument that the new regulations did not comply with KRS 1 Kentucky Revised Statutes. 2 Chapter 13A. The circuit court also allowed inmate Gregory Wilson to intervene in the lawsuit. At the time, Wilson had an active death warrant signed by the Governor that provided for his execution by lethal injection on September 16, 2010. On September 10, 2010, the circuit court entered a temporary injunction that prevented the regulations from taking effect. The circuit court not only found discrepancies between the new regulations and applicable statutes with regard to the drugs used in lethal injections, but also found the regulations did not prohibit execution of insane or mentally disabled inmates, which was potentially in conflict with various statutes and the 8th Amendment to the U.S. Constitution. The temporary injunction provided, in relevant part, the Court restrains and enjoins the Commonwealth and its officers, and [DOC], its agents, employees and others acting in concert with [DOC], from implementing the Governor’s execution warrant for Wilson, or otherwise implementing the administrative regulations under challenge in this action until a final judgment has been rendered in this case. (Emphasis added.) Following entry of the temporary injunction, the Attorney General and DOC sought a writ from this Court, in relevant part only, to dismiss the underlying declaratory judgment action and dissolve the temporary injunction. Commonwealth ex rel. Conway v. Shepherd, 336 S.W.3d 98 (Ky. 2011). We declined to issue a writ, explaining, in relevant part, that given the magnitude of the issues presented here concerning not only whether particular individuals might be properly executed by the state but also the 3 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, we will not exercise our discretion to issue a writ here[.] Id. at 103 (emphasis added) (footnote omitted). We also “recognize[d] 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[.] Id. at 104. Further, we discerned “no clear abuse of discretion in the Franklin Circuit Court’s granting of the temporary injunction.” Id. In the years since, DOC has promulgated various regulations related to execution protocols. In response, the inmates have dropped claims, the circuit court has dismissed claims, and the inmates have been permitted to file amended complaints to add claims pertaining to new regulations. 2 The litigation has remained ongoing as DOC promulgates new regulations, sometimes taking years to do so. In 2024, the Commonwealth attempted to dissolve the temporary injunction after new regulations went into effect, but the circuit court reserved ruling on the matter. The Commonwealth sought relief in this Court pursuant to RAP 3 20(B), which was denied. See Dep’t of Corr. v. Baze, 701 S.W.3d 549 (Ky. 2024). In 2025, the Commonwealth again sought to dissolve the temporary injunction. The circuit court denied relief, ruling, in part, that questions 2 Wilson’s death sentence was commuted in 2019 by then-Governor Matt Bevin, and he is no longer a party to the underlying action. 3 Rule of Appellate Procedure. 4 remained regarding execution of inmates with intellectual disabilities. The circuit court also ruled that if the Governor or DOC seek to proceed to implement the new regulations by issuing a death warrant, they are authorized under the prior injunction to file a motion to modify the injunction if necessary, or to authorize additional actions they deem necessary to implement the death penalty in any given case. Only upon filing of such a motion, and a hearing thereon, can the Court determine if such action gives rise to irreparable injury, if it presents a substantial legal issue, determine the public interest and balance the equities, as required in ruling on injunctive relief under Maupin v. Stansbury, 575 S.W.2d 695 (Ky. App. 1978). The Court cannot decide such issues in the abstract, as the Attorney General urges here. In effect, the Attorney General seeks an advisory opinion as to whether undefined or speculative actions in the future would run afoul of the 2010 injunction… However, at the present time, there is no action that the Commonwealth has taken to implement the new regulations and accordingly, any controversy regarding implementation of the new regulations is not ripe for consideration. April 21, 2025 Order at 4. Subsequently, the Commonwealth decided to move forward with execution of Baze. Baze was identified by the Commonwealth as an inmate who had exhausted all appeals and post-conviction remedies and presented no other legal impediment to execution. In June 2025, the Attorney General sent a letter to the Governor explaining that he believed the 2010 injunction did not apply to Baze and recommended the Governor issue a death warrant. The Governor ultimately declined to act on the Attorney General’s recommendation, citing 1) ongoing changes to applicable administrative regulations; 2) the fact that DOC does not possess the necessary drugs and had received 5 correspondence from numerous drug companies indicating they will not provide drugs for use in executions; and 3) his understanding that the 2010 injunction prevented DOC from executing any inmates. The Commonwealth returned to the circuit court and, on November 6, 2025, filed a motion asking the court to “clarify the scope of the court’s 2010 temporary injunction.” Specifically, the Commonwealth asked for an order stating that the 2010 injunction does not prevent the Governor from issuing a death warrant for Baze. In an order entered on December 30, 2025, the circuit court denied the motion, ruling that the order requested by the Commonwealth would violate separation of powers and constitute an advisory opinion. This petition for a writ of mandamus followed. II. STANDARD OF REVIEW A writ is an extraordinary remedy. Ridgeway Nursing & Rehab. Facility, LLC v. Lane, 415 S.W.3d 635, 639 (Ky. 2013). Courts are reluctant to issue writs because they “necessitate an abbreviated record which magnifies the chance of incorrect rulings that would prematurely and improperly cut off the rights of litigants.” Interactive Media Ent. & Gaming Ass’n v. Wingate, 320 S.W.3d 692, 695 (Ky. 2010) (citation omitted). Accordingly, this Court has held that writs are appropriate in limited circumstances: A writ of prohibition may be granted upon 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) 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 6 otherwise and great injustice and irreparable injury will result if the petition is not granted. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004) (emphasis original). We confine our analysis to the second class of writs. Our jurisprudence recognizes a subcategory under the second class of writs: [I]n certain special cases this Court will entertain a petition for prohibition in the absence of a showing of specific great and irreparable injury to the petitioner, 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. It may be observed that in such a situation the court is recognizing that if it fails to act the administration of justice generally will suffer the great and irreparable injury. Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961). However, “these ‘certain special cases’ are exactly that—rare exceptions that tend to be limited to situations where the action for which the writ is sought would violate the law, e.g., by breaching a tightly guarded privilege or by contradicting the requirements of a civil rule.” Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 808 (Ky. 2004) (footnotes omitted). With these standards in mind, we proceed with our review. III. ANALYSIS We begin by reiterating that the Commonwealth is seeking a writ of mandamus to compel the circuit court to issue an order clarifying that the 2010 injunction does not prevent the Governor from issuing a death warrant. The Commonwealth argues it has no adequate remedy by appeal; that it will suffer great and irreparable injury in the absence of a writ; and, alternatively, 7 that if we do not agree the Commonwealth can demonstrate the requisite harm, a writ is still appropriate “in the interest of orderly judicial administration.” Bender, 343 S.W.2d at 801. This Court recently rendered an opinion denying the Commonwealth’s petition for a writ of prohibition in the underlying litigation. See 2025-SC- 0310-OA, opinion rendered on August 20, 2026, and designated to be published. Therein, the Commonwealth argued the circuit court lacked subject matter jurisdiction to hear the underlying action because the inmates failed to exhaust administrative remedies. The instant petition, filed just six months after 2025-SC-0310-OA, and well before an opinion was rendered, argues, in part, that the circuit court misapplied doctrines about subject matter jurisdiction to the 2010 injunction and, because the circuit court assumed jurisdiction and acted within its “inherent power” in issuing the injunction, it has retained jurisdiction to bring its orders into compliance with the Civil Rules. In any event, we have now held in our August 2026 Opinion that Franklin Circuit Court has subject matter jurisdiction to consider the inmates’ challenges. We also note that, just days before our decision was rendered in 2025- SC-0310-OA, the inmates filed a “notice of ruling in underlying action” containing an order from the circuit court entered on August 14, 2026. The Court takes judicial notice of the order, which concerns new administrative regulations promulgated by DOC that went into effect in April 2026. As a result of the newest regulations, the circuit court dismissed five of the inmates’ 8 remaining claims and allowed four to survive: 1) Claim D concerns whether use of compounded lethal injection drugs violates the 8th Amendment to the U.S. Constitution, and whether failure to specify that compounded drugs will not be used renders the regulation invalid; 2) Claims F and G relate to whether the new regulations provide adequate protection against execution of insane and mentally disabled individuals, respectively; and 3) Claim I relates to intravenous (“IV”) insertion for the purpose of administering the lethal injection. The new regulation permits DOC to attempt to insert an IV for up to two hours, which the inmates argue will cause a substantial risk of pain and suffering. In addition to disposing of five claims, the circuit court denied the inmates’ motion for leave to amend their sixth amended petition for declaratory judgment. We now turn to the elements necessary for a writ of mandamus. The Commonwealth must demonstrate that it lacks adequate remedy by appeal or otherwise. It has failed to do so. Although this litigation has been extremely prolonged, the August 14, 2026 Order indicates that it is nearing final adjudication. The inmates point to an agreed scheduling order that was entered on June 24, 2025, and argue the parties remain on track and discovery is set to be complete by April 29, 2027. Part of the overall delay has been that new regulations have been promulgated by DOC in piecemeal fashion, sometimes taking years. The newest regulations became effective in April 2026; however, as stated supra, the circuit court did not allow the inmates to further amend their petition for declaratory judgment in response and 9 dismissed five of nine remaining claims. In other words, it appears from the limited record before us that the final versions of the regulations are now in effect and the associated claims have been narrowed in response. At least two of the remaining claims (i.e., whether a compounded drug can be used in lethal injection and whether DOC can attempt to insert an IV for up to two hours) are applicable to all inmates facing execution. 4 Once the circuit court enters a final adjudication on the inmates’ remaining claims, the aggrieved party may appeal the final judgment. This accordingly means the Commonwealth has an adequate remedy by appeal. Even if the Governor issued a death warrant for Baze right now, the underlying constitutional issues regarding implementation of the death penalty remain unresolved. This would result in Baze making the same claims he is making now, but on the eve of execution, and the parties would end up at the same place they are right now in the litigation. This is neither efficient nor logical. Moreover, the temporary injunction will terminate upon entry of a final appealable judgment. CR 65.04(4). The Commonwealth argues that entry of a final judgment cannot undo the harm caused by the Governor’s interpretation of the 2010 injunction. However, the Governor’s interpretation of the injunction, and the Attorney General’s disagreement with it, is a non- justiciable claim. 4 Per KRS 431.220(1)(a), lethal injection is the only approved method of execution for those sentenced to death after March 31, 1998. Those sentenced to death prior to March 31, 1998, may choose between lethal injection and the electric chair. KRS 431.220(1)(b). 10 Neither the circuit court, through an order in the underlying action, nor this Court, through a writ, can require the Governor to issue a death warrant. First, the Governor is not a party to the underlying action. Second, the Governor cited additional reasons outside of the injunction for not issuing a death warrant, including lack of available approved drugs. Third, although the Attorney General can and has advised the Governor of his legal interpretation of the injunction, the Governor is not required to accept that interpretation or act upon it. Section 69 of the Kentucky Constitution provides that “[t]he supreme executive power of the Commonwealth shall be vested in a Chief Magistrate, who shall be styled the ‘Governor of the Commonwealth of Kentucky.’” Section 81 provides that the Governor “shall take care that the laws be faithfully executed.” As such, the governor’s policy concerning the signing of death warrants is strictly an executive function. The Kentucky Constitution expressly addresses the separation of powers within the branches of government. Ky Const §§ 27, 28. Moreover, the separation of powers doctrine “is fundamental to Kentucky's tripartite system of government.” Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907, 912 (1984). This Court does not have the power to interfere with the Governor’s policy concerning the signing of death warrants. Bowling v. Commonwealth, 926 S.W.2d 667, 669 (Ky. 1996) (emphasis added). Further, entry of an order by the circuit court instructing the Governor that he may sign a death warrant for Baze would constitute an advisory opinion. “Our courts do not function to give advisory opinions, even on 11 important public issues, unless there is an actual case in controversy.” Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992). As this Court recently explained, [u]nder the separation of powers enshrined in our Kentucky Constitution, the courts of this Commonwealth consider only “justiciable causes.” Ky. Const. § 112(5) (“The Circuit Court shall have original jurisdiction of all justiciable causes not vested in some other court.”) (emphasis added); Commonwealth, Cabinet for Health & Fam. Servs., Dep’t for Medicaid Servs. v. Sexton, 566 S.W.3d 185, 197 (Ky. 2018) (“[T]he justiciable cause requirement applies to cases at all levels of judicial relief.”). That is, we consider only claims the adjudication of which falls properly within our judicial function. Examples of non-justiciable claims beyond the purview of our judicial function include those seeking an advisory opinion, requesting adjudication of a claim that is moot or not ripe, or presenting a political question inappropriate for judicial determination. Sexton, 566 S.W.3d at 193. Graham v. Adams, 684 S.W.3d 663, 676 (Ky. 2023). The disagreement between the Attorney General and the Governor over interpretation of the injunction is a non-justiciable claim. Any action by the circuit court or this Court to intervene would constitute an advisory opinion. The Commonwealth has also failed to demonstrate that great injustice and irreparable injury will result unless a writ is issued. The injunction has been in place for approximately 16 years, and this is the first time the Commonwealth has argued the injunction applied only to Wilson. This Court has interpreted the injunction as applicable to all executions (see, e.g., Shepherd, 336 S.W.3d 98; Baze, 701 S.W.3d 549). Further, the circuit court has consistently interpreted the injunction as applicable to all executions, not just Wilson’s. See, e.g., circuit court orders entered April 25, 2012, and 12 December 5, 2013. An appellate court generally gives deference to the circuit court’s interpretation of its own orders unless that interpretation is manifestly unreasonable. VP Louisville, LLC v. NBH Bank, N.A., 578 S.W.3d 753, 757 (Ky. App. 2019) (citation omitted). See also Kendrick v. Bland, 931 F.2d 421, 423 (6th Cir. 1991) (“The District Court’s interpretation of its own order is certainly entitled to great deference.”). More to the point, the Commonwealth cannot show that the circuit court’s interpretation of its own order and its subsequent refusal to “clarify” it in a manner acceptable to the Commonwealth some 16 years after entry, amounts to great injustice and irreparable injury. Indeed, the Commonwealth’s petition focuses on injuries it is allegedly suffering due to the Governor’s failure to issue a death warrant since June 2025, when first contacted by the Attorney General, not due to the temporary injunction being in place since 2010. Again, even if the Commonwealth received the relief it is seeking (i.e., “clarification” of the injunction), the litigants and the courts would be in the exact position as they are right now. Accordingly, great injustice and irreparable injury have not been demonstrated. Finally, the Commonwealth has failed to convince us that this is a “special case” and that a writ is necessary “in the interest of orderly judicial administration” despite the Commonwealth’s failure to show great injustice and irreparable injury. Bender, 343 S.W.2d at 801. To be clear, the issues before the circuit court are of great importance and public concern. That the litigation has unfortunately been so prolonged cannot be tied to any one factor or to any particular action or inaction by a particular party. Nevertheless, the 13 circuit court has kept the case moving forward. Its ability to do so has generally been tied to the timing of promulgation of new regulations by DOC. The most recent set of regulations went into effect in April 2026, and it now appears that the constitutional issues raised by the inmates in their petition for declaratory judgment will be finally adjudicated. In other words, although it has not been happening quickly due to the complex nature of the underlying claims, “orderly judicial administration” has been occurring in the circuit court and continues to occur. To that end, a writ of mandamus from this Court is not necessary. IV. CONCLUSION The Commonwealth has failed to demonstrate that it lacks adequate remedy by appeal or that great injustice and irreparable injury will result if a writ is not granted. Moreover, the petition fails to satisfy the requirement of a “special case” exception in the absence of a showing of great injustice and irreparable injury. The Attorney General’s disagreement with the Governor over interpretation of the 2010 injunction is a non-justiciable claim. Any order by the circuit court or this Court instructing the Governor as to what he may do regarding issuance of a death warrant would constitute an advisory opinion. Accordingly, the petition for a writ of mandamus is denied. All sitting. Bisig, Conley, Goodwine and Nickell, JJ., concur. Lambert, C.J., concurs by separate opinion which Conley, J., joins. Thompson, J., dissents by separate opinion. 14 LAMBERT, C.J., CONCURRING: Just as only the Governor may pardon, only the Governor may sign a death warrant. The Franklin Circuit Court, in its order entered on April 21, 2025, specifically acknowledged that the Governor may issue a death warrant and move the circuit court to lift the injunction so as to permit the execution of any death row inmate. Therefore, I concur with the majority that we have no power to interfere with the Governor’s decision whether to sign death warrants. Bowling v. Commonwealth, 926 S.W.2d 667, 669 (Ky. 1996). No court can direct his pen in that regard. Therefore, I concur with the majority. Conley, J., joins. THOMPSON, J., DISSENTING: Thirty-two years have passed since Ralph Baze was sentenced to death in 1994, 5 following a jury trial in which he was convicted of the 1992 double murders of Sheriff Steven Bennett and Deputy Arthur Briscoe. Baze’s conviction was affirmed on direct appeal in 1997. Baze v. Commonwealth, 965 S.W.2d 817, 819-20, 826 (Ky. 1997). Then Baze challenged, along with fellow death row inmate Thomas Clyde Bowling, Kentucky’s lethal injection protocol as violative of the Eighth Amendment prohibition against cruel and unusual punishment. Our Court rejected this argument, and the United States Supreme Court upheld our 5 This length of delay, coincidentally, matches the length of delay that a death row inmate in California argued constituted a violation of the Eighth Amendment. The United States Supreme Court denied his request for certiorari. Boyer v. Davis, 578 U.S. 965 (2016) (Breyer, J., dissenting). 15 ruling. Baze v. Rees, 217 S.W.3d 207, 212 (Ky. 2006), aff’d, 553 U.S. 35, 63 (2008). The underlying declaratory judgment action underlying this petition for a writ of mandamus was filed twenty years ago in 2006 by Bowling, Baze, and Brian Keith Moore. Since that time, additional death row inmates have been added to the action. The “temporary” injunction at issue here has been in place since 2010. In 2015, Bowling passed away from cancer at age sixty-two. Baze is currently seventy-one. At the rate this case is proceeding, Baze and other petitioners will die of natural causes before this case’s resolution. 6 I would grant the petition for a writ of mandamus and order the Franklin Circuit Court to rule within sixty days as to whether the temporary injunction that has been in place since 2010 applies to Baze. 7 It is far from clear that this temporary injunction should apply to him or the other death row inmates where the prior regulations which led to the injunction have been replaced with others. This litigation has lasted far too long, and the hope for an ultimate resolution to it at some indefinite time after discovery has been completed in 6 More death row inmates die from natural causes while imprisoned than are executed. Jeffrey Omar Usman, The Twenty-First Century Death Penalty and Paths Forward, 37 Miss. C.L. Rev. 80, 82–85 (2019). 7 The question of whether the circuit court ought to rule upon whether the temporary injunction should continue to apply to the other death row inmates is not before us. The Commonwealth’s petition for mandamus is worded narrowly as a request that we “issue a second-class writ directing the circuit court to clarify that its 2010 temporary injunction does not bar the Governor from signing a death warrant for Ralph Baze.” 16 2027 does not excuse the circuit court’s failure to make a ruling on whether this temporary injunction is still needed as to Baze. Once such a ruling is made, the parties will have a mechanism to seek further review by our Court. I. PROCEDURAL HISTORY REGARDING THE TEMPORARY INJUNCTION In 2010, Gregory Wilson, a death row inmate who was subject to a signed death warrant and had intervened in the underlying declaratory action, filed a motion for a temporary injunction to prevent his execution. He raised arguments that the Department of Corrections’ newly promulgated “death penalty protocols” violated various provisions of the Kentucky Administrative Procedures Act. In granting Wilson’s motion and ordering a temporary injunction, the circuit court found: [T]here are at least two substantial questions of law regarding the validity of the administrative regulations that require the Court to issue an injunction to preserve the status quo until the entry of a final judgment. First, the administrative regulations prohibit the use of a single drug for lethal injection under 501 [Kentucky Administrative Regulations (KAR)] 16:330, while the lethal injection statute explicitly allow the use of a single drug. [Kentucky Revised Statutes (KRS)] 431.220(1)(a). This discrepancy between the administrative regulation and the governing statute raises a substantial issue as to . . . whether the administrative regulation conflicts with the authorizing statute in violation of KRS Chapter 13A (including 13A.120 and KRS 13A.130). Second, this Court finds that the failure of the administrative regulations to prohibit the execution of insane or mentally retarded inmates, or to provide adequate safeguards to prevent such an outcome, raises a substantial issue as to whether the administrative regulations illegally conflict with KRS 431.213 et seq. and KRS 532.135. Likewise, the lack of adequate safeguards or requirements to establish the mental health issues that may apply to condemned inmates raises serious questions as to whether the regulations are consistent with the 8th Amendment to the U.S. Constitution as 17 applied in Ford v. Wainwright, 477 U.S. 399 (1986) (insanity) and Atkins v. Virginia, 536 U.S. 304 (2002) (mental retardation). Because the movant has demonstrated that there are substantial legal questions regarding the validity of the challenged administrative regulations, and has met the other requirements of law for injunctive relief, the Court hereby GRANTS Wilson’s motion for injunctive relief under CR 65.04. For the reasons stated below, the Court restrains and enjoins the Commonwealth and its officers, and the Department of Corrections . . . from implementing the Governor’s execution warrant for Wilson, or otherwise implementing the administrative regulations under challenge in this action until a final judgment has been rendered in this case. (Footnotes omitted). Wilson’s strongest ground for an injunction was that the death penalty protocols did not provide a method for determining whether he was ineligible to be executed due to having an intellectual disability, as no determination had been made in his case as to whether he was “death eligible” in accordance with constitutional requirements as implemented by our statutes. KRS 532.135 requires that a determination be made prior to trial as to whether a defendant has a “serious intellectual disability.” 8 However, that provision was not in effect at the time Wilson was tried. KRS 532.140 provides that “a defendant who has been determined to be a defendant with a serious intellectual disability . . . shall not be subject to execution.” KRS 532.130(2) clarifies: “A defendant with significant subaverage 8 In the intervening years, KRS 532.130, KRS 532.135, and KRS 532.140 have been amended to change the terminology they use to refer to persons with intellectual disabilities. I choose to quote the latest version of these statutes with current terminology rather than quote from the prior versions, as in substance the statutes have not changed significantly. 18 intellectual functioning existing concurrently with substantial deficits in adaptive behavior and manifested during the developmental period . . . [has] a serious intellectual disability.” Having a “significant subaverage general intellectual functioning” is defined in KRS 532.130(2) “as an intelligent quotient (I.Q.) of seventy (70) or below.” The circuit court’s decision to grant the injunction in part hinged upon its finding that “it appears that Wilson’s execution has been scheduled before there has been any determination of his mental capacity under KRS 532.135, as required by the United States Supreme Court in Atkins v. Virginia, supra and by the Kentucky Supreme Court in Bowling v. Commonwealth of Kentucky, 163 S.W.3d 361, 377 (Ky. 2005).” The circuit court noted that Wilson took an IQ test “when he was fourteen years old (during his developmental period),” which “demonstrated an IQ of 62, [which] was well below the threshold set by KRS 532.130.” Consequentially, the circuit court found “there is a good faith basis to believe that Wilson may be ineligible for the death penalty under KRS 532.140.” Among its legal conclusions, the circuit court concluded that “[t]he administrative regulations, as promulgated, contain no means of determining if a condemned inmate is mentally retarded as defined in KRS 532.140 and Atkins v. Virginia, supra.” The circuit court considered the standards for granting a preliminary injunction pursuant to the Kentucky Rules of Civil Procedure (CR) 65.04, found that Wilson met all of the criteria, and, given the two substantial legal issues it 19 had found that justified injunctive relief, then proceeded to balance the equities before determining that a temporary injunction was appropriate: [T]he 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 [Wilson’s victim] 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. The circuit court’s order granting the temporary injunction included broad language: “that 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.” Commonwealth ex rel. Conway v. Shepherd, 336 S.W.3d 98, 105 (Ky. 2011) (quoting from the circuit court’s order). In 2011, the Commonwealth filed a petition before our Court for an extraordinary writ. 9 The Commonwealth requested that our Court act to: (1) dismiss the declaratory judgment action; (2) prohibit the circuit court from 9 The type of writ sought was not specified by the Commonwealth. 20 entering any orders; and (3) supersede and dissolve the temporary injunction. Id. at 101. We made two specific rulings in our opinion on these matters: (1) We declined to “exercise our discretion to issue a writ here, even assuming that the Petitioners have made the required showings to make a writ available” because “we do not believe it would be in the public interest to grant the relief requested by the Petitioners in this writ proceeding[;]” and (2) we determined that the circuit court did not abuse its discretion in issuing the temporary injunction. Id. at 103-05. In determining that the circuit court had not abused its discretion, it was appropriate for us to “give considerable deference to the circuit court’s evaluation of the dispute, the issues involved, the weighing of the equities, and whether an injunction is proper under the particular circumstances at hand.” Boone Creek Props., LLC v. Lexington-Fayette Urb. Cnty. Bd. of Adjustment, 442 S.W.3d 36, 38 (Ky. 2014). We made no specific ruling upon the propriety of the circuit court’s decision to apply the temporary injunction broadly to all death row inmates when we summarized our understanding of the reach of the temporary injunction as follows: “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.” Commonwealth ex rel. Conway, 336 S.W.3d at 104. See id. at 101 n.10. Additionally, our Court did not rule upon the propriety of the circuit court’s underlying findings as to why an injunction was appropriate, stating 21 “[w]e express no opinion on the merits of the Franklin Circuit Court’s holdings on these issues.” Id. at 100 n.8. Since our ruling in Commonwealth ex rel. Conway, the death penalty protocols have changed substantially with repeated amendments to the pertinent KAR provisions. The amendments provide procedures for evaluating condemned inmates for insanity and intellectual disability prior to any execution and clarify the lethal injection protocols. 501 KAR 16:310, which was last amended effective April 7, 2026, provides specific protocols relating to insanity and intellectual disability in Sections 3 and 4. Prior to an execution, an inmate is assessed for signs of insanity, and a report goes to the warden. 501 KAR 16:310 § 1(1)(d). Any information the warden receives from medical or mental health staff that the condemned person may be insane triggers a process in which a medical professional reviews the information and determines whether an additional psychiatric evaluation needs to be performed, and a finding of insanity suspends the execution. 501 KAR 16:310 § 3. As to intellectual disability, a licensed psychologist reviews all