Released for Publication July 2, 2015.
ON APPEAL FROM FRANKLIN CIRCUIT COURT. HONORABLE PHILLIP J. SHEPHERD, JUDGE. NO. 13-CI-00461.
COUNSEL FOR APPELLANTS: Euva Denean Blandford, Meggan Elizabeth Smith, Assistant Public Advocate, Department of Public Advocacy.
COUNSEL FOR STEVE BESHEAR, GOVERNOR OF KENTUCKY, APPELLEE: Steven Travis Mayo, Jessica R.C. Malloy, Assistant Attorney General, Office of the Attorney General.
COUNSEL FOR LADONNA THOMPSON, IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE KENTUCKY DEPARTMENT OF CORRECTIONS, APPELLEE: Angela Turner Dunham, Justice and Public Safety Cabinet, Office of Legal Services.
COUNSEL FOR THE KENTUCKY PAROLE BOARD, APPELLEE: John C. Cummings, Justice and Public Safety Cabinet, Office of Legal Services.
Death-row inmates Robert Foley and Ralph Baze appeal from an Order of the Franklin Circuit Court dismissing their Kentucky Revised Statute (KRS) 418.040 complaint for a declaratory judgment to the effect that " the Kentucky procedures outlining the submission and review of a petition for executive clemency [are] constitutionally inadequate." Appellants sought an order requiring the Governor, and/or the Department of Corrections (through its Commissioner, LaDonna Thompson), and/or the Kentucky Parole Board " to adopt adequate policies and procedures regarding clemency petitions." They further sought an order requiring the Parole Board " to adopt administrative procedures governing the ways in which they [the Board] must conduct clemency investigations." The three defendants, Appellees in this Court, all moved to have the complaint dismissed, and following a hearing and supplemental filings, the trial court granted the defense motions. The court noted that Section 77 of the Constitution of Kentucky vests the power to grant pardons in the Governor. In the court's view, " It would violate the separation of powers for the courts to attempt to dictate to the Governor the procedures he must employ in considering pardons." Baze and Foley contend that the trial court's reliance on the separation of powers doctrine was inappropriate. As they see it, Kentucky's " paucity" of clemency-related legislation allows for arbitrary clemency decisions and thus violates their rights to due process under the Fourteenth Amendment to the Constitution of the United States, a violation the courts can address without trespassing on the power of the executive. Convinced that Appellants' petition has failed to state a claim for relief, we affirm the trial court's order dismissing the complaint.
Both Foley and Baze have been convicted of multiple murders and sentenced to death. Foley was convicted in the Laurel Circuit Court of the 1991 murders of brothers Rodney and Harry Lynn Vaughn and for both killings he was given the death penalty. The conviction and sentence were affirmed in Foley v. Commonwealth, 942 S.W.2d 876, 43 12 Ky.L.Summary 11 (Ky. 1996), cert.
denied, 522 U.S. 893, 118 S.Ct. 234, 139 L.Ed.2d 165 (1997). Foley was also convicted in the Madison Circuit Court of four murders that took place in Laurel County in 1989, but that were not discovered until after the Vaughn murders. He was sentenced to death for each killing, and this Court upheld the conviction and sentence in Foley v. Commonwealth, 953 S.W.2d 924, 44 5 Ky.L.Summary 13 (Ky. 1997), cert. denied, 523 U.S. 1053, 118 S.Ct. 1375, 140 L.Ed.2d 522 (1998). Baze was convicted and sentenced to death in the Rowan Circuit Court for the 1992 murders of two police officers who were attempting to serve fugitive warrants on him in Powell County. This Court affirmed his conviction and sentence in Baze v. Commonwealth, 965 S.W.2d 817, 44 4 Ky.L.Summary 10 (Ky. 1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1536, 140 L.Ed.2d 685 (1998).
In addition to their direct appeals, both Appellants have unsuccessfully pursued both state and federal collateral relief. Both have also previously sought declaratory relief pursuant to KRS 418.040. Baze, in fact, has already sought declaratory relief against the Department of Corrections based on an alleged violation of an asserted clemency-related right to due process. Baze v. Thompson, 302 S.W.3d 57 (Ky. 2010) (upholding denial of claim that due process provisions of state and federal constitutions mandate that death row inmate have access to prison personnel and other inmates in furtherance of the preparation of a clemency petition).
Appellants tendered the present KRS 418.040 complaint in April 2013. The complaint does not address the statute's requirement that there exist an " actual controversy" between the parties, and in particular Appellants do not allege that the Governor has arbitrarily denied their petitions for clemency or even that they have filed petitions for clemency. Implicit in the complaint, however, is the notion that as death row inmates who have exhausted their appeals Appellants presently have a strong interest in being considered for clemency such that an actual controversy exists between them and the state officials who, according to Appellants, by failing to adopt ...