RALPH SHOLLER, ET AL. V. KENTUCKY PAROLE BOARD, ET AL. — OPINION OF THE COURT BY JUSTICE BISIG AFFIRMING

RENDERED: OCTOBER 22, 2026 TO BE PUBLISHED Supreme Court of Kentucky 2024-SC-0517-TG RALPH SHOLLER; BRIAN SMITH; AND JEFFREY COFFEY APPELLANTS V. ON MOTION TO TRANSFER FROM COURT OF APPEALS NO. 2024-CA-1312 FRANKLIN CIRCUIT COURT NO. 21-CI-00889 KENTUCKY PAROLE BOARD; COMMONWEALTH OF KENTUCKY; AND LADEIDRA N. JONES, CHAIR APPELLEES AND 2024-SC-0518-TG KEVIN ADAMS; AE PHANNACHAY; CARLOS FAULKNER; CHHON POK; CHRISTOPHER WALLS; DANIEL MILLER; DARNELL COLLIER; DONALD BARTLEY; DONALD BUCKMAN; ENOS BURDEN; GEORGE WADE; GERALD MCGOWAN; JAMES DUNN; JAMES TRIPP; MICHAEL FUGATE; OUTH SANANIKONE; SHAFI KHAN; STEPHANIE SPITSER; TEDDY COSBY; TERRY FRAZIER; TONI PARRISH; WILLIAM BELEW; WILLIAM EVANS; WILLIAM HENRY; WILLIAM THOMPSON; WILLIE UNDERWOOD; AND YORIG REYES APPELLANTS V. ON MOTION TO TRANSFER FROM COURT OF APPEALS

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2 NO. 2024-CA-1330 FRANKLIN CIRCUIT COURT NO. 21-CI-00898 KENTUCKY PAROLE BOARD; COMMONWEALTH OF KENTUCKY; AND LADEIDRA JONES APPELLEES AND 2025-SC-0041-TG LEIF HALVORSEN APPELLANT V. ON MOTION TO TRANSFER FROM COURT OF APPEALS NO. 2025-CA-0140 FRANKLIN CIRCUIT COURT NO. 22-CI-00009 KENTUCKY PAROLE BOARD; COMMONWEALTH OF KENTUCKY; AND LADEIDRA JONES, CHAIR, KENTUCKY PAROLE BOARD, IN HER OFFICIAL CAPACITY APPELLEES OPINION OF THE COURT BY JUSTICE BISIG AFFIRMING This case concerns the Kentucky Parole Board’s extraordinary responsibility to decide whether and when a person convicted of a crime and incarcerated should be released and the regulations that govern this important process. Specifically, after controversy and litigation surrounding the Kentucky Parole Board’s authority to order an inmate to serve-out their life sentence, thus precluding an inmate from ever being considered parole eligible,

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3 the Board enacted a “directive,” purporting to alter its authority and change parole procedures. Under this new Directive, the Board converted previously issued serve-outs to ten-year deferments, thus providing additional parole eligibility hearings to affected inmates serving life sentences. After the Laurel Circuit Court issued a temporary restraining order preventing the Board from enforcing its Directive,1 the Board rescinded its Directive and cancelled newly scheduled hearings. Ralph Sholler, Kevin Adams, and Leif Halvorsen filed complaints against the Board seeking declaratory judgment in Franklin Circuit Court challenging the Board’s actions. Ultimately, the circuit court concluded that the Directive was void and thus unenforceable. This appeal followed, which focuses primarily on whether the Directive was a valid exercise of the Parole Board’s authority. After review, we affirm the Franklin Circuit Court. FACTS AND PROCEDURAL HISTORY The Kentucky Parole Board has the sole authority for granting parole. Kentucky Revised Statute (KRS) 532.060. After reviewing a parole-eligible inmate’s record, and depending on an inmate’s underlying crimes and sentences, the Board has a range of options available for its consideration in determining whether to grant or deny parole, or to defer parole consideration 1 The declaratory judgment action in Laurel Circuit Court was filed by then- Attorney General Daniel Cameron and Commonwealth’s Attorney Jackie Steele. Steele is a resident of Laurel County, and his office prosecuted some of the prisoners to whom the Board sought to grant another parole eligibility hearing. Steele brought the declaratory action in his official capacity and on behalf of crime victims under Section 26A of the Kentucky Constitution.

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4 for a later date. Additionally, the Parole Board may order an inmate to “serve out” his judicially imposed sentence, thus denying the inmate an opportunity for any future parole hearings. This authority remains viable even in the case of an inmate serving a life sentence. This appeal involves the Parole Board’s attempt to amend its existing policies and procedures regarding its ability to order an inmate to serve out his or her life sentence. KRS 439.340(14) expressly authorizes the Parole Board to order serve-outs for life sentences: If the Parole Board does not grant parole to a prisoner, the maximum deferment for a prisoner convicted of a non-violent, non-sexual Class C or Class D felony shall be twenty-four (24) months. For all other prisoners who are eligible for parole: (a) No parole deferment greater than five (5) years shall be ordered unless approved by a majority vote of the full board; and (b) No deferment shall exceed ten (10) years, except for life sentences. (Emphasis added). As relevant here, the Parole Board is statutorily empowered to defer parole consideration for more than ten years – without limitation – if the prisoner is serving a life sentence. This authority is reinforced by the Board’s own regulation, 501 Kentucky Administrative Regulation (KAR) 1:030 § 3(2)(b), which states that “[e]xcept as provided in KRS 439.340(14) . . . [t]he board, at the initial or a subsequent review, may order a serve-out on a sentence.” The Appellants in this appeal, Ralph Sholler, Kevin Adams, and Leif Halvorsen, are inmates who were denied parole and ordered to serve out their life sentences.

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5 They now challenge a series of actions taken by the Parole Board regarding their parole eligibility. The Parole Board conducted a regular meeting on January 19, 2021, which began at 8:41 a.m. According to the meeting minutes, at 8:51 a.m., then-Chairperson Lee VanHoose asked for a motion to take the meeting into closed session to “discuss pending litigation against the Board.” Approximately thirty minutes later, at 9:22 a.m., the Board returned to open session. Despite the announced purpose of entering closed session to discuss pending litigation, Chairperson VanHoose asked for a motion to “amend the Parole Board regulations to note that when hearing initial eligibility on offenders with a life sentence, the maximum deferment allowed would be 120 months.” Without any intervening discussion, the Board approved the motion. The Board discussed additional unrelated business, and the meeting was officially adjourned at 9:54 a.m. The Board discussed new hearings for formerly served- out inmates during meetings on March 8, March 15, and March 29. Chairperson VanHoose and the Department of Corrections staff began taking steps to implement the Board’s decision by identifying inmates who had already been ordered to serve out their life sentences at their initial parole eligibility hearings and changing their parole eligibility dates in the Department of Corrections’ computer system. On April 1, 2021, Chairperson VanHoose issued a written Directive intended to implement the January 19 meeting vote to amend the Board’s policies regarding deferment for inmates serving life sentences. The Directive

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6 states that during the initial parole eligibility hearing for an inmate serving a life sentence, the maximum deferment allowed is 120 months. It also states that at any subsequent parole eligibility hearing, the Board will have the full range of decisions available, which would include ordering an inmate to serve out their sentence. Further, the Directive purported to apply retroactively, applying to any inmate serving a life sentence that had previously been ordered to serve out their sentence at their initial parole eligibility hearing. Those previously served- out inmates would instead have that serve-out converted to a 120-month deferment. As a result, any inmate who was previously ordered to serve out their life sentence would receive a parole eligibility hearing within 120 months of their initial parole eligibility hearing, and, if that date had already passed, within 6 months after VanHoose issued the Directive. Notably, the Directive acknowledged that parole consideration must comply with KRS 439.340, which allows the Board to defer parole consideration for a prisoner serving a life sentence for more than ten years, impliedly authorizing the Board to order an inmate to serve out their life sentence. KRS 439.340(14)(b). Shortly after Chairperson VanHoose issued the Directive, the Commonwealth filed suit in Laurel Circuit Court to prevent its enforcement. On June 17, 2021, the Laurel Circuit Court entered a temporary restraining order that prevented the Board from giving effect to the Directive. Thereafter, Governor Beshear replaced Chairperson VanHoose with Ladeidra Jones. In a letter dated July 1, 2021, Chairperson Jones rescinded the Directive and

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7 canceled the parole eligibility hearings that had been scheduled pursuant to the Directive. The letter referenced that the Directive was in accordance “with the Parole Board’s decision to promulgate/amend regulations . . . .” Later, on September 20, 2021, the Board voted to rescind its January 19 vote, which sought to preclude the Board from ordering an inmate to serve out their life sentence at their initial parole eligibility hearing. By January 2022, Sholler, Halvorsen and Adams filed complaints against the Parole Board seeking declaratory judgment in Franklin Circuit Court. The complaints asserted that the Parole Board violated the inmates’ due process rights by revoking their newly granted parole hearings. The Commonwealth intervened in the actions, countering that the inmates had no legal right to another parole hearing under the Directive because the Directive was unlawful and void from the moment it was issued. Ultimately, the Commonwealth and the Board filed motions for summary judgment. The Franklin Circuit Court concluded (1) the Directive violated KRS 13A.100 and 13A.130, which require agencies to follow a specific rulemaking process in issuing or amending regulations; (2) the Directive violated KRS 439.340(3)(b), which requires the Board to adopt regulations regarding the parole process; (3) the Directive violated 501 KAR 1:030, which permits the Board to issue serve-outs, even at the initial parole eligibility hearing; and (4) the Directive violated Kentucky Parole Board Policy and Procedures 10-00, which governs the parole hearing process, by illegally converting all previous serve-outs to ten-year deferments. The circuit court explained that the Board

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8 is “not empowered to sua sponte, through its Chairperson, declare a new policy or procedure such as was done through the Directive, and directly defy the KRS Chapter 13A process.” As such, the circuit court granted summary judgment in favor of the Commonwealth. As to Halvorsen’s claims, the circuit court further concluded that some of his claims were barred by the one-year statute of limitations for declaratory judgment actions because his claims accrued in 2020 when the Board ordered him to serve out his life sentence, rendering his complaint, filed in January 2022, untimely. This Court granted transfer of the resulting appeals and heard oral argument. After careful consideration, we affirm the Franklin Circuit Court. ANALYSIS I. The Directive issued by the Parole Board constituted an administrative regulation. KRS 13A.100(1) specifies the matters and actions that Kentucky administrative entities must prescribe through the formal administrative regulatory process: [e]ach 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 . . . . As an administrative entity, the Parole Board is required to “adopt administrative regulations with respect to the eligibility of prisoners for parole, the conduct of parole and parole revocation hearings and all other matters that come before it . . . .” KRS 439.340(3)(b). The General Assembly enacts laws that contain general rules and broad goals, but it is incumbent upon

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9 administrative agencies to generate specific rules to enforce those laws. As such, an agency, like the Parole Board, must promulgate regulations that serve as a blueprint for how the Board conducts its business in a manner that follows the laws prescribed by the General Assembly. An administrative regulation is a “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.” KRS 13A.010(2). KRS 13A.100 explains that any administrative entity empowered to promulgate regulations, like the Parole Board, must use the promulgation process to enact any statement or policy that fits within the statutory definition of a regulation. KRS Chapter 13A outlines a specific process for promulgating administrative regulations. The process is important because agency regulations provide the necessary details to implement laws enacted by the General Assembly. Further, administrative regulations adopted by an agency have the force and effect of law. Linkous v. Darch, 323 S.W.2d 850 (Ky. 1959). Agencies must file proposed regulations with the Legislative Research Commission, pursuant to KRS 13A.050(3), and summarize what the regulation does and how it conforms to the agency’s authorizing statutes. KRS 13A.240(1). Once filed, a regulation is reviewed by the Administrative Regulation Review Subcommittee, a statutory bipartisan committee of the General Assembly, to determine whether the proposed regulation is sufficient and may move forward. KRS 13A.030(2). A proposed regulation is also

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10 published for public comment. This process ensures both oversight and transparency. This Court examined the operation of KRS 13A.100 in Bowling v. Kentucky Department of Corrections, where death row inmates brought a declaratory judgment action to challenge Kentucky’s lethal injection procedures. 301 S.W.3d 478 (Ky. 2009). The Department of Corrections maintained that the lethal injection procedures were “matters of internal management . . . not affecting private rights.” Id. at 487. The Court concluded that Kentucky law mandated that the lethal injection protocol be promulgated as a regulation. Id. at 492. In so holding, the Court explained that the Department of Corrections “must adopt administrative regulations a[s] identified in KRS 13A.100.” Id. at 487. This case fits squarely within the holding of Bowling. Here, the Parole Board issued the Directive, which implements, interprets, or prescribes law or policy regarding parole eligibility for inmates serving life sentences. The Directive seeks to modify the mandates set forth by KRS 439.340(14) and 501 KAR 1:030 § 3(2)(b), which allow the Board to order an inmate to serve out their life sentence. Similar to the lethal injection protocol in Bowling, the Directive constitutes a regulation because it is a statement of general applicability regarding Parole Board procedures that it is required, by statute, to maintain. See KRS 439.340(3)(b) (requiring the Board to promulgate regulations regarding parole eligibility).

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11 To reiterate, KRS 439.340(3)(b) requires the Board to adopt regulations with respect to parole eligibility and the conduct of parole hearings. Despite the Board’s labeling of its new policy as a “directive,” rather than a regulation, the Directive was without a doubt a statement of general applicability that prescribed a new limit on the parole process for inmates serving life sentences. Regardless of the label, the Parole Board’s action in issuing the Directive amounted to a regulation which quite simply was not promulgated according to the statutory requirements of KRS Chapter 13A. The Directive at issue broadly applied to all inmates serving life sentences and prescribed that the maximum parole deferment allowed for such inmates is 120 months. Pertinently, the Directive purported to alter both the clear statutory and regulatory authority held by the Board to deny parole and order a serve-out at an initial parole eligibility hearing. The Directive was overtly at odds with both KRS 439.340(14) and 501 KAR 1:030 § 3(2)(b). By prescribing policy regarding parole eligibility for inmates serving life sentences, the Directive constituted an administrative regulation that was required to be implemented through the regulatory process.2 2 We note that the Attorney General argues that the parties agreed the Directive was an administrative regulation, referencing various portions of the trial court record in which the inmate Appellants refer to the Directive as a regulation. Regardless of the labels attributed to the Directive by any of the parties, we need not determine whether there was any sort of admission or waiver of this issue, as we ultimately conclude that the Directive was in fact an administrative regulation implicating the requirements of KRS Chapter 13A.

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12 II. The Parole Board’s action was contrary to KRS 13A.100 and KRS 13A.130. Because the Directive constituted an administrative regulation, the enactment and implementation of the Directive violated KRS Chapter 13A. KRS Chapter 13A establishes guardrails for administrative agencies to ensure both transparency and accountability. The processes of KRS Chapter 13A are essential to ensure that agencies, which possess a great degree of power, stay within their statutorily delineated lanes. Working in tandem with KRS 13A.100’s explanation of what constitutes a regulation is KRS 13A.130, which prohibits the adoption of regulations by informal agency action. KRS 13A.130(1) makes clear that administrative agencies are prohibited from bypassing the rulemaking process and issuing, on their own motion, changes to an existing statute or administrative regulation: (1) An administrative body shall not by internal policy, memorandum, or other form of action: (a) Modify a statute or administrative regulation; (b) Expand upon or limit a statute or administrative regulation (2) Any administrative body memorandum, internal policy, or other form of action violative of this section or the spirit thereof is null, void, and unenforceable. As noted above, under KRS 439.340(14), the Board is permitted to issue serve- outs at an initial parole eligibility hearing for an offender serving a life sentence. Therefore, the Board is statutorily authorized to defer parole consideration for more than ten years—without limitation—if the offender is serving a life sentence. The Directive attempted to alter the Board’s authority by instead allowing a maximum of a ten-year deferment, which impermissibly inhibits the Board’s authority under the statute.

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13 The Board’s authority to order an inmate to serve-out their life sentence has been a long-running issue in Kentucky courts. In April 2024, this Court resolved several inmates’ challenge to the Board’s serve-out authority and concluded that serve-outs are authorized by the legislature and not constitutionally impermissible. Conn v. Kentucky Parole Bd., 701 S.W.3d 76, 92 (Ky. 2024).3 The Court explained that if the Parole Board does not alter a sentence adjudged by the court, and if it follows its own statutory and administrative guidelines, “the Board has wide discretion in its decision to grant or deny parole.” Id. at 89. Importantly, while the Board has the authority to issue a serve-out, it is not required to do so and can exercise its discretion to determine the circumstances under which that authority should be used. Additionally, 501 KAR 1:030 § 3(2)(b), a regulation promulgated by the Board, provides that, except as provided by KRS 439.340(14), the Board, at either an initial or subsequent parole review, may order a serve-out. The plain text of the Directive prohibited the Board from ever ordering a serve-out of an inmate’s life sentence at his initial parole eligibility hearing. Because the regulation and Directive are in express conflict, the Directive thus limits the application of the regulation or seeks to modify that regulation. This type of action is prohibited by KRS 13A.130(1)(b), unless such a change is properly 3 While the Conn case proceeded through the appellate channels, the actions leading to the current appeals were initiated.

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14 promulgated according to the procedures for issuing a regulation. Furthermore, the Directive attempted to apply this rule retroactively to offenders who had already been ordered to serve out their sentences. Simply put, the Directive sought to modify the Board’s statutory and discretionary authority to issue a serve-out, which cannot be accomplished by bypassing KRS Chapter 13A. Because the Board failed to take the proper action to amend its existing regulations, the Directive was void and unenforceable. KRS 13A.130(2). III. The Parole Board’s Directive failed to comply with the mandates of KRS 439.340(3)(b) and 501 KAR 1:030 § 3(2)(b). KRS 439.340(3)(b) provides, in relevant part: “the board shall adopt administrative regulations with respect to the eligibility of prisoners for parole, the conduct of parole and parole revocation hearings and all other matters that come before it, or conditions to be imposed upon parolees.” Because, as established in Section II, the Directive failed to comply with the mandates of KRS Chapter 13A, the Directive also violated KRS 439.340(3)(b) by unlawfully attempting to change the parole eligibility of offenders serving life sentences and diminishing the Board’s ability to issue serve-outs at initial parole eligibility hearings for such offenders. The Board’s attempt to implement a rule regarding parole eligibility and the parole hearing process was statutorily required to be accomplished through the administrative regulation process. Additionally, the Directive also violated 501 KAR 1:030 § 3(2)(b), which states, except as provided in KRS 439.340(14), which allows the Board to issue a deferment that is longer than ten years if an inmate is serving a life sentence,

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15 “[t]he board, at the initial or a subsequent review, may order a serve-out on a sentence.” Regulations adopted by an agency have the force and effect of law. Linkous, 323 S.W.2d at 850. The Directive expressly prohibited the Board from ever ordering a serve-out of an inmate’s life sentence at his initial parole eligibility hearing. Because the Directive and the regulation are in direct conflict, the Directive thus sought to modify the regulation. In order to effectuate this type of change, the Board was required to promulgate such an amendment in accordance with the proper procedures in KRS Chapter 13A. IV. The Parole Board’s Directive failed to follow KYPB 10-00. The Directive also violated the Parole Board’s internal policies and procedures for parole hearings as outlined in KYPB 10-00. The Parole Board maintains a manual containing its policies and procedures that are incorporated into the Board’s administrative regulations by reference. 501 KAR 1:080. Therefore, KYPB 10-00 constitutes a regulation, and to modify KYPB 10-00, a promulgated amendment is required. Because no such amendment occurred, this establishes yet another way in which the Directive was void and unenforceable. KYPB 10-00 allows the Board to reconsider a parole decision in an individual case if the Chairperson (1) requests such reconsideration at a Board meeting and (2) a majority of the Board’s members present vote, in writing, to grant reconsideration. KYPB 10-00 Section E. An alternative option allows an inmate to submit a request for reconsideration, on limited grounds, in writing within twenty-one days after receiving notice of the Board’s decision to deny

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16 parole. KYPB 10-00 Section F. If the Board decides to reconsider an inmate’s parole, Section G of KYPB 10-00 requires that the Board review the record from the inmate’s prior parole hearing to determine if there are grounds to alter the initial decision. Section 3 of the Directive purported to apply the Directive retroactively, thus converting every previously issued serve-out order at an initial parole hearing into a 120-month deferment, and further ordered new parole hearings for those affected inmates. But the Parole Board policy makes it clear that there are only two ways in which the Board can reconsider a prior parole decision. Because it is undisputed that no request was made pursuant to KYPB 10-00 Section F, we consider whether Section E was implicated. The inmates argue that the Board did, in fact, vote to reconsider the affected inmates’ parole, grant them ten-year deferments, and provide them with future parole eligibility hearings—all within the approximately thirty minutes the Board was in closed session—for the forty-five inmates who were ordered to serve out their life sentences at their initial parole eligibility hearing. The record reveals that no review under Section E occurred. The inmates argue that by issuing the Directive, the Board effectively determined that offenders serving life sentences who were ordered to serve out their sentences at their initial parole eligibility hearings were not given proper consideration originally, and therefore the Board agreed to grant reconsideration to that entire class of inmates. While we acknowledge that there are no minutes reflecting what the Board discussed during its closed session, as no minutes or

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17 summary are required, there is no other indication that the Parole Board discussed reconsideration for each individual inmate that was ultimately affected by the Directive. Neither the Directive nor the January 19, 2021 Board meeting vote conducted in open session considered individual circumstances of the affected inmates or what the Board considered in previously ordering the inmates to serve out their life sentences. Instead, the Directive constituted a blanket conversion of every serve-out that was previously ordered during an initial parole eligibility hearing. In fact, after the January 19, 2021 vote, the Department of Corrections provided then- Chairperson VanHoose a list of names of the inmates whose ten-year deferment date was technically in the past pursuant to the Directive and thus needed a new parole eligibility hearing within six months of April 1, 2021, the date the Directive was issued. This renders it difficult to believe that the Board identified and discussed the circumstances of each inmate that had previously been ordered to serve out their life sentence at their initial parole eligibility hearing. Section E generally refers to reconsideration of a Board decision, without express reference to parole decisions specifically. The Parole Board makes a variety of decisions, including whether to grant or deny parole, decisions regarding supervision of paroled individuals, and whether to revoke parole. While KYPB 10-00 does not explicitly state that the Board must consider the individual circumstances surrounding each inmate if it decides to reconsider a prior parole decision, the fact that the Chairperson must make the request to

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18 reconsider, and that request must be made at a Board meeting in which a quorum is present, and the majority of members must vote in writing to reconsider the prior decision indicates that deciding to undo a prior Board decision is not something that should be done lightly. Additionally, during the January 19 Board meeting, the Board went into a closed session to discuss pending litigation. There was no indication that it intended to discuss its regulations, policies, or any changes to its procedures. Even if then-Chairperson VanHoose did make a request for reconsideration under KYPB 10-00 Section E, the Board did not vote in writing as the policy explicitly requires. As such, the Directive violated the requirements of KYPB 10-00, which establishes regulations that carry the force of law, and thus constitutes an additional way in which the Directive was void. V. The Parole Board was authorized to rescind the Directive and cancel the newly granted hearings. Turning to the inmates’ main argument, they assert that the Board lacks the authority to simply cancel a parole hearing and return an inmate to a prior parole decision. We start by reiterating that the Board cannot amend its administrative regulations through a directive, instead of following the regulatory process of KRS Chapter 13A. Therefore, whether the Board possessed the authority to rescind the Directive is a non-issue because the Directive was void from the beginning. Without consideration of individual circumstances, the Directive converted every prior serve-out order issued at an initial parole eligibility hearing to a 120-month deferment. The Parole Board began the process of identifying affected inmates and scheduling new hearing

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19 dates. The inmates assert that the Board could not cancel those hearings once they had been scheduled. At its core, parole is a privilege, not a right. Conn, 701 S.W.3d at 85-86. Therefore, the denial of parole has no constitutional implication. Morris v. Wingo, 428 S.W.2d 765 (Ky. 1968). In Stewart v. Commonwealth, 153 S.W.3d 789, 792 (Ky. 2005), the Court reasoned that “[t]he fact that the Board may have changed its mind before the inmate was actually placed on parole is not a violation of due process.” Because an inmate has no liberty interest in parole, the Court confirmed that the Board may change its mind regarding its parole decision at any point prior to actual release. Id. Similarly, given the lack of constitutional implications at issue, the Board can likewise change its mind regarding the scheduling of a new parole eligibility hearing. This is especially the case when the hearings were scheduled under a Directive that was void from the start. As such, the Board did not violate the inmates’ rights by rescinding the Directive or by canceling previously scheduled parole hearings. VI. The Parole Board’s action was contrary to the Open Meetings Act. Generally, the Open Meetings Act, KRS 61.800-61.850, establishes a right of access to public meetings, with the Legislature recognizing that the formation of public policy is public business and should not be conducted in secret. However, the Act permits agencies to have discussions in a closed session, provided the agency satisfies certain conditions. KRS 61.815(1)(a) requires the agency to give notice in the regular meeting of the general nature

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20 of the business to be discussed, the reason for the closed session, and the specific provision authorizing the closed session. At its January 19, 2021 meeting, the Board approved a motion to enter a closed session “to discuss pending litigation against the Board.” Immediately after the Board returned to open session, then-Chairperson VanHoose “asked for a motion to amend the Parole Board regulations to note that when hearing initial eligibility on offenders with a life sentence, the maximum deferment allowed would be 120 months.” The Board then approved that motion. This vote was done without notice that the Board intended to discuss changes to administrative regulations, directives, or other policies. Moreover, there was certainly no indication that the result of the closed session would be a sweeping policy that stood in direct contradiction to both statutory and regulatory authority governing the Board’s policies and procedures. Matters of general policymaking are not among the statutorily permissible subjects that may be discussed in a closed session. KRS 61.810(1). KRS 61.810(1) generally requires that agency business be conducted in public, but provides exceptions to that requirement, including an exception for the discussion of pending litigation. But it bears noting that the scope of the “pending litigation” exception to the Open Meetings Act is limited. “[T]he drafters of [KRS 61.810(1)(c)] clearly envisioned that this exception would apply to matters commonly inherent to litigation, such as preparation, strategy or tactics. . . . [T]he matters discussed under KRS 61.810(1)(c) must not be expanded to include general discussions of ‘everything tangential to the topic.’”

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21 Floyd Cnty. Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 923-24 (Ky. 1997) (citation omitted). While it is reasonable to believe that, in discussing pending litigation regarding ordering serve-outs of life sentences, the topic of modifying existing policies or regulations could arise, there was no discussion, in open session, regarding the intention to amend existing procedures. KRS 61.815 contains the requirements for agencies when conducting closed sessions: (a) Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session; (b) Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session; (c) No final action may be taken at a closed session; and (d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session. Subsections (a) and (d) require notice of the nature of the discussions to be had in closed session, and mandate that no matters other than those announced can be discussed. By announcing the intended discussion of pending litigation, and ultimately discussing amending regulations regarding serve- outs, the Board violated both (a) and (d). Additionally, subsection (b) requires a vote to enter closed session. While the Board did vote, it voted to discuss pending litigation, not changing its serve-out policy for life sentences. Finally, subsection (c) provides that “[n]o final action may be taken at a closed session.” This Court has held that “[a] public agency cannot ratify actions improperly taken in closed session.” Carter v. Smith, 366 S.W.3d 414, 423 (Ky. 2012). Rather, where “no discussion [is] had, no explanation [is]

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22 offered and there [is] no opportunity for input or questions from the public,” improper final action taken in a closed session cannot “be ratified by this quick up-and-down vote in open session.” Id. “Any rule, resolution, regulation, ordinance, or other formal action of a public agency without substantial compliance with the requirements of KRS 61.810 [or] 61.815 . . . shall be voidable by a court of competent jurisdiction.” KRS 61.848(5). The Board’s closed session in which it ultimately discussed changes to its policy regarding serve-outs and the Directive issued by the Chairperson to effect those changes violated the Open Meetings Act, rendering the Directive void. VII. No material factual dispute existed that precluded the grant of summary judgment. The inmates argue that various factual disputes existed, which precluded the trial court from granting summary judgment. Admittedly, there are some unresolved issues concerning the circumstances and procedure that led to the issuance of the directive. Summary judgment is appropriate if there are no genuine issues as to any material fact. Kentucky Rule of Civil Procedure (CR) 56.03. The key component of our summary judgment standard is materiality. Notably, none of the facts at issue here – i.e., what the Board discussed during the closed session, or whether the Board considered and voted individually as to each inmate to give them a new parole hearing – affect the ultimate conclusion that the Directive was an administrative regulation and thus void for failure to follow KRS Chapter 13A. A “[d]etermination that a fact is material or immaterial rests on the substantive law’s identification of which facts are

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23 critical and which facts are irrelevant.” Kearney v. Univ. of Ky., 638 S.W.3d 385, 397 (Ky. 2022). The facts that the inmates alleged were overlooked or misconstrued by the circuit court are immaterial to this case given that the Board’s actions in issuing the Directive failed to follow statutory authority, thus rendering the Directive void. VIII. Appellant Halvorsen’s claims were barred by the statute of limitations. After the Franklin Circuit Court granted summary judgment in favor of the Commonwealth, concluding that the Board’s Directive violated Kentucky law and was thus void, it next considered whether some of Appellant Halvorsen’s claims were barred by the statute of limitations. In part, Halvorsen claimed that the Board (1) improperly ordered him to serve out a sentence that former Governor Bevin commuted to life with the possibility of parole in violation of Section 77 of the Kentucky Constitution; (2) violated the Ex Post Facto clauses of the Kentucky and United States Constitutions by ordering him to serve out his life sentence because a serve-out was not an available option when he committed the crimes at issue, nor when he was sentenced; (3) erred by ordering a serve-out without adopting meaningful criterion for evaluating his circumstances; (4) held his parole hearing without the required fourteen day notice, and (5) prejudged his parole determination without meaningful consideration of mitigating factors. The applicable statute of limitations for a declaratory judgment action is one year. The parties disagree as to when Halvorsen’s claims accrued, and thus when the one-year statute of limitations began to run. The circuit court

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24 held that Halvorsen’s injuries accrued on May 18, 2020, when the Board ordered him to serve out his life sentence. Because he initiated this action on January 3, 2022, his claims are barred by the statute of limitations. We agree. The errors Halvorsen alleged related to the May 2020 parole eligibility hearing and the Board’s May 18, 2020 decision to order him to serve out his sentence. These alleged deficiencies were known to Halvorsen in May 2020, thus requiring him to initiate his complaint within one year of that time. The issuance of the Directive did not alter any of the alleged errors because Halvorsen is seeking a declaration that his May 2020 parole hearing and the Board’s subsequent decision were deficient. As a result, the above five claims alleged by Halvorsen are indeed time-barred. CONCLUSION In sum, the Parole Board’s Directive violated KRS 13A.100, KRS 13A.130, KRS 439.340(3)(b), KRS 439.340(14), 501 KAR 1:030 § 3(2)(b), and KYPB 10-00. For the foregoing reasons, we affirm the judgment of the Franklin Circuit Court. All sitting. All concur.

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25 COUNSEL FOR APPELLANTS, RALPH SHOLLER, BRIAN SMITH, JEFFREY COFFEY, KEVIN ADAMS, AE PHANNACHAY, CARLOS FAULKNER, CHHON POK, CHRISTOPHER WALLS, DANIEL MILLER, DARNELL COLLIER, DONALD BARTLEY, DONALD BUCKMAN, ENOS BURDEN, GEORGE WADE, GERALD MCGOWAN, JAMES DUNN, JAMES TRIPP, MICHAEL FUGATE, OUTH SANANIKONE, SHAFI KHAN, STEPHANIE SPITSER, TEDDY COSBY, TERRY FRAZIER, TONI PARRISH, WILLIAM BELEW, WILLIAM EVANS, WILLIAM HENRY, WILLIAM THOMPSON, WILLIE UNDERWOOD, AND YORIG REYES: Aaron P. Riggs Bailey E. Brown Assistant Public Advocates COUNSEL FOR APPELLANT, LEIF HALVORSEN: Timothy G. Arnold David Barron Assistant Public Advocates COUNSEL FOR APPELLEES, KENTUCKY PAROLE BOARD AND LADEIDRA JONES: Edward A. Baylous II Angela T. Dunham Natalie Rae Lile Kentucky Justice & Public Safety Cabinet COUNSEL FOR APPELLEE, COMMONWEALTH OF KENTUCKY: Matthew F. Kuhn John H. Heyburn Aaron John Silletto Assistant Attorneys General

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