Kentucky Parole Policy Changes Require Formal Rulemaking: A Void Directive Creates No Right to a New Hearing

1. Introduction

This decision addresses the boundary between the Kentucky Parole Board’s discretion in individual cases and its authority to establish generally applicable parole policies. The central question was whether the Board could use a directive, rather than formal administrative rulemaking, to prohibit life-sentence serve-outs at initial parole hearings and retroactively replace previously imposed serve-outs with ten-year deferments.

The consolidated appeals involved Ralph Sholler and other incarcerated appellants, a second group led by Kevin Adams, and Leif Halvorsen. The appellees were the Kentucky Parole Board, the Commonwealth of Kentucky, and Board Chair Ladeidra Jones. The affected inmates had been denied parole and ordered to serve out their life sentences. A 2021 directive promised renewed parole consideration, but the Board subsequently rescinded it and canceled the resulting hearings.

The Supreme Court held that the directive was an administrative regulation in substance, regardless of its label. Because the Board had bypassed mandatory rulemaking procedures and contradicted governing statutes, regulations, and reconsideration procedures, the directive was void from its inception. It therefore created no enforceable entitlement to the newly scheduled hearings.

2. Background and Procedural History

The governing parole framework

KRS 439.340(14) regulates the length of parole deferments. For prisoners outside its specified category of nonviolent, nonsexual Class C or Class D offenders, deferments exceeding five years require approval by a majority of the full Board. Ordinarily, deferments cannot exceed ten years, but the statute expressly excepts life sentences from that ceiling.

The court interpreted that exception as authorizing the Board to defer further consideration indefinitely for an inmate serving a life sentence. Consistently, 501 KAR 1:030 § 3(2)(b) permits a serve-out at either an initial or subsequent parole review, subject to the statutory restrictions. A serve-out leaves the judicially imposed sentence intact but ends the opportunity for future parole consideration under that decision.

The directive and its withdrawal

1. January 19, 2021: The Board entered a closed session announced as a discussion of pending litigation. After returning to open session, it immediately approved a motion limiting deferments at initial parole hearings for inmates serving life sentences to 120 months.
2. April 1, 2021: Then-Chairperson Lee VanHoose issued a written directive implementing that policy. Serve-outs would remain available at subsequent hearings, but not at initial hearings for life sentences.
3. Retroactive operation: The directive purported to convert qualifying earlier serve-outs into ten-year deferments. Inmates whose ten-year dates had already passed were to receive hearings within six months of the directive.
4. June 17, 2021: The Laurel Circuit Court temporarily restrained enforcement in litigation brought by then-Attorney General Daniel Cameron and Commonwealth’s Attorney Jackie Steele.
5. July 1, 2021: Newly appointed Chairperson Jones rescinded the directive and canceled the hearings scheduled under it.
6. September 20, 2021: The Board formally rescinded its January vote.

The inmates sought declaratory relief in Franklin Circuit Court, principally alleging that withdrawing their new hearings violated due process. The Commonwealth maintained that the directive had never been legally effective. The circuit court granted summary judgment against the inmates and additionally held that five claims challenging Halvorsen’s May 2020 parole proceeding were untimely. The Supreme Court accepted transfer of the appeals and affirmed.

3. Summary of the Opinion

The Supreme Court’s principal conclusions were:

• Substance controls over terminology: The directive established a generally applicable parole policy and therefore constituted an administrative regulation.
• Formal rulemaking was mandatory: The Board could not change governing parole rules through an internal directive that bypassed KRS Chapter 13A.
• Existing law remained controlling: The directive conflicted with the Board’s statutory and regulatory serve-out authority and its incorporated reconsideration procedures.
• No enforceable hearing entitlement arose: Hearings scheduled under a directive void from the beginning could be canceled without violating the asserted due process rights.
• Public deliberation requirements also applied: The pending-litigation exception did not authorize undisclosed general policymaking in closed session.
• Factual disagreements did not require trial: They could not alter the dispositive failure to undertake formal rulemaking.
• Halvorsen’s separate challenges were late: His five claims concerning the May 2020 proceeding accrued then, not when the later directive was issued or withdrawn.

4. Legal Reasoning

A. A generally applicable directive is a regulation when it performs regulatory work

KRS 13A.010(2) defines an administrative regulation by its function: a generally applicable statement implementing, interpreting, or prescribing law or policy, or describing an agency’s organizational or procedural requirements. KRS 13A.100 requires covered agency actions to proceed through formal rulemaking. KRS 439.340(3)(b) specifically directs the Parole Board to adopt regulations governing parole eligibility, hearings, and other matters before it.

The directive satisfied those requirements because it did not merely resolve a particular inmate’s case. It established a rule for a class of prisoners, restricted the decisions available at initial hearings, and retroactively altered earlier outcomes. Calling it a “directive” did not change its legal character.

This functional approach prevents agencies from avoiding statutory safeguards through drafting choices. The court did not need to decide whether the inmates had admitted or waived the regulation issue by their terminology in earlier filings; classification followed from the directive’s substance.

B. Rulemaking safeguards are legally consequential

The opinion explains that administrative regulations supply the operational detail needed to implement legislation and carry the force of law. Their adoption therefore requires more than an agency vote or a chairperson’s instruction.

The court identified requirements including filing with the Legislative Research Commission, explaining the proposal’s operation and statutory conformity, review by the Administrative Regulation Review Subcommittee, and publication for public comment. These procedures provide legislative oversight, transparency, and accountability.

KRS 13A.130 reinforces those safeguards by prohibiting an agency from using an internal policy, memorandum, or other informal action to modify, expand, or limit a statute or administrative regulation. Subsection (2) makes actions violating that prohibition “null, void, and unenforceable.” The directive’s failure was therefore not merely a procedural defect awaiting correction: it lacked legal effect from the outset.

C. Discretion in individual cases does not authorize informal categorical restrictions

The Board could decline to impose a serve-out in an individual case. The court expressly recognized that statutory authority to order a serve-out does not make that outcome mandatory.

The directive nevertheless went further. It categorically removed serve-outs from the Board’s available choices at initial hearings for inmates serving life sentences, notwithstanding the authority preserved by KRS 439.340(14) and expressly recognized in 501 KAR 1:030 § 3(2)(b).

The distinction is between exercising existing discretion and rewriting the framework governing that discretion. The former occurs through lawful adjudication; the latter requires compliance with the applicable rulemaking statutes. Moreover, proper procedure would not authorize a regulation inconsistent with the governing statute. The decision should not be read as approving every possible reform merely because it is formally promulgated.

D. Blanket retroactive conversion was not valid reconsideration

The inmates alternatively characterized the Board’s actions as reconsideration of earlier parole decisions. That argument encountered KYPB 10-00, the Board’s hearing policy, which is incorporated into its regulations through 501 KAR 1:080 and thus has regulatory force.

KYPB 10-00 provides two reconsideration routes:

• Section E: A chairperson’s request at a Board meeting, followed by the required majority written vote granting reconsideration.
• Section F: An inmate’s written request on limited grounds within twenty-one days after notice of the decision.

Section G further requires review of the previous hearing record to determine whether grounds exist to change the earlier decision.

No Section F request was involved. The court also found no demonstrated compliance with Section E, including its written-vote requirement. Neither the directive nor the public vote considered the affected inmates’ individual circumstances or the grounds for their earlier serve-outs. Identifying affected prisoners after the policy vote further undermined the claim that the Board had already reconsidered each case.

The court acknowledged that Section E does not expressly spell out every individualized-review requirement. Its conclusion rested on the reconsideration framework as a whole and the absence of required procedures, rather than an invented express prohibition on every form of collective Board action.

E. An invalid directive could not generate an enforceable right to a hearing

The inmates argued that, once hearings were scheduled, the Board could not simply cancel them and restore the previous serve-outs. The court rejected the premise: the previous decisions had never been lawfully displaced.

The opinion also relied on Kentucky precedent treating parole as a privilege rather than a constitutional entitlement and permitting reconsideration of a parole grant before actual release. It extended that reasoning to the scheduling of another eligibility hearing, particularly where the scheduling depended entirely on an unlawful directive.

The holding concerns these additional hearings and their invalid legal foundation. It should not be expanded into a conclusion that the Board may disregard every statutory hearing obligation or that revocation of parole after release presents the same constitutional questions.

F. Pending-litigation discussions cannot become undisclosed policymaking

The Open Meetings Act generally requires public agency business to occur openly. Although pending litigation may justify a closed session, KRS 61.815 requires public notice of the discussion’s general nature, reason, and authorizing provision. Discussion must remain within the announced subject, and final action cannot occur in closed session.

The Board announced discussion of pending litigation, not a revision of parole policy. The court concluded that using the closed session to develop the policy exceeded the permissible scope of that announcement and the litigation exception. The immediate, unexplained public vote did not cure the defect.

A statutory distinction matters here: KRS 61.848(5) makes formal agency action taken without substantial compliance voidable by a court. The opinion treated the Open Meetings Act violation as another ground for invalidating the directive. Independently, KRS 13A.130 expressly rendered the improper informal regulatory action void and unenforceable.

G. The unresolved factual questions were not material

The inmates disputed what occurred in closed session and whether individual reconsideration took place. Under CR 56.03, however, a factual disagreement defeats summary judgment only if it is material to the legal outcome.

Whatever those disputed details might establish, they could not show that the directive had undergone the required KRS Chapter 13A process. The undisputed rulemaking failure independently required judgment against the inmates. This reasoning also makes the decision less dependent on reconstructing an unrecorded closed-session discussion.

H. Halvorsen’s independent claims accrued with the challenged 2020 decision

Halvorsen separately challenged his May 2020 hearing and serve-out on five grounds: interference with the Governor’s commutation power under Section 77 of the Kentucky Constitution; violations of the state and federal Ex Post Facto Clauses; inadequate evaluative criteria; insufficient hearing notice; and prejudgment without meaningful consideration of mitigation.

Applying the one-year limitations period it identified for the declaratory claims, the court held that those alleged injuries were known when the Board ordered the serve-out on May 18, 2020. Halvorsen did not sue until January 3, 2022. The later directive did not restart the limitations period for defects in the earlier proceeding.

Those claims were rejected as untimely, not adjudicated on their constitutional or factual merits. The opinion does not provide a broader analysis of limitations periods for differently grounded declaratory actions.

5. Precedents Cited and Their Influence

Linkous v. Darch, 323 S.W.2d 850 (Ky. 1959)

This case supplies the proposition that duly adopted administrative regulations have the force and effect of law. That principle explains why the Board could not treat 501 KAR 1:030 as an optional internal preference. It also supports the significance of the incorporated KYPB 10-00 procedures: an informal directive could not override governing regulatory requirements simply because the same agency administered them.

Bowling v. Kentucky Department of Corrections, 301 S.W.3d 478 (Ky. 2009)

This was the principal analogy for classifying the directive. In Bowling v. Kentucky Department of Corrections, death-row inmates challenged lethal-injection procedures that the Department characterized as internal management not affecting private rights. The court required promulgation under KRS 13A.100.

The present opinion applied the same substance-over-label approach. Like the execution protocol, the parole directive prescribed generally applicable procedures within an area requiring administrative regulation. An agency’s characterization of its action could not displace the statutory definition.

Conn v. Kentucky Parole Bd., 701 S.W.3d 76 (Ky. 2024)

This decision established the immediate substantive background. It upheld legislative authorization for life-sentence serve-outs and rejected the constitutional challenge addressed there. It also recognized broad parole discretion when the Board does not alter the judicial sentence and follows its statutory and administrative guidelines.

The present court used that qualification decisively: broad discretion exists within the governing legal framework, not outside it. The precedent also supported the characterization of parole as a privilege, while leaving the Board free to decline a serve-out where lawful discretion warrants another outcome.

Morris v. Wingo, 428 S.W.2d 765 (Ky. 1968)

The court cited this case for the proposition that denial of parole does not itself carry the asserted constitutional implication. Its role was to undermine the inmates’ claim that the prospect of renewed parole consideration necessarily created a protected entitlement. The additional, case-specific reason for rejecting their claim remained the directive’s invalidity.

Stewart v. Commonwealth, 153 S.W.3d 789 (Ky. 2005)

This case held that the Board’s change of mind before an inmate was actually released on parole did not violate due process. The present opinion reasoned by analogy: if an unexecuted parole decision could be changed, the scheduling of an additional eligibility hearing could likewise be withdrawn in these circumstances. The analogy was particularly strong because the hearings resulted from a directive that never became legally effective.

Floyd Cnty. Bd. of Educ. v. Ratliff, 955 S.W.2d 921 (Ky. 1997)

This precedent narrowly construes the pending-litigation exception to the Open Meetings Act. Protected discussions concern matters inherent in litigation, such as preparation, strategy, and tactics—not everything tangentially related to a lawsuit.

It prevented the Board from treating litigation over serve-outs as a general license to formulate new parole policy privately. A connection between litigation and a policy subject does not eliminate the public’s right to observe policymaking.

Carter v. Smith, 366 S.W.3d 414 (Ky. 2012)

This case establishes that a public agency cannot cure improperly closed final action through a perfunctory public ratification. The present court applied its rejection of a “quick up-and-down vote” lacking discussion, explanation, or opportunity for public input. The Board’s immediate open-session approval therefore did not remedy the improper closed-session process.

Kearney v. Univ. of Ky., 638 S.W.3d 385 (Ky. 2022)

This precedent explains that substantive law determines which facts are material. It supported affirmance despite disagreements about the Board’s internal discussions and possible reconsideration activity. Because those disagreements could not cure the absence of mandatory rulemaking, they did not require a trial.

6. Potential Impact

Administrative agencies must distinguish policy from adjudication

The decision reinforces that a generally applicable rule cannot escape Chapter 13A through labels such as “directive,” “memorandum,” or “internal policy.” Other Kentucky agencies may face similar challenges when informal instructions change legally established procedures or affect the public.

Parole reform requires lawful procedure and substantive authority

The opinion does not require the Board to impose life-sentence serve-outs. Nor does it forbid lawful reconsideration or all future policy reform. It requires the Board to use existing reconsideration procedures for prior decisions and proper rulemaking for regulatory changes, while remaining within legislative authorization.

Administrative implementation cannot validate an unlawful rule

Changes to computer records, identification of eligible inmates, and scheduled hearings did not cure the directive’s invalidity. Future litigants will need to identify a valid legal source for the benefit claimed rather than rely solely on an agency’s implementation steps.

Litigation confidentiality has limits

Public bodies must separate confidential litigation strategy from general policymaking. A later public vote will not necessarily rescue a policy developed through an unlawfully closed process.

Later developments do not necessarily revive older claims

Halvorsen’s claims illustrate the importance of challenging an allegedly unlawful parole proceeding promptly. A subsequent policy initiative does not automatically reopen the time to contest a known earlier injury.

7. Complex Concepts Simplified

Serve-out

A decision requiring an inmate to serve the remaining judicial sentence without further parole consideration under that decision. For a life sentence, it ends the prospect of release through ordinary future parole review.

Deferment

A postponement of parole consideration. Unlike a serve-out, it provides for another review after a specified interval.

Administrative promulgation

The legally prescribed process for adopting agency rules, including filing, review, and opportunities for public participation.

Incorporation by reference

A regulation’s adoption of another document as part of its requirements. Here, that mechanism gave the Board’s hearing policies regulatory force.

Void from inception

Legally ineffective from the beginning. On the court’s reasoning, the directive never validly replaced the earlier serve-outs.

Liberty interest

A legally protected interest in freedom that can trigger constitutional procedural protections. The court found no such entitlement to the additional hearings created solely by this invalid directive.

Material fact

A fact capable of changing the outcome under governing law. Disputes about legally irrelevant details do not prevent summary judgment.

Accrual

The point when a claim arises and its filing deadline begins to run. Halvorsen’s challenged injuries accrued with the May 2020 proceeding and decision.

8. Conclusion

The central lesson is that administrative discretion does not include authority to rewrite governing law informally. The Parole Board’s directive established a general rule, contradicted existing legal requirements, and bypassed mandatory procedures. Its implementation could not create an enforceable right to additional hearings.

The unanimous decision preserves lawful case-specific parole discretion while requiring regulatory change, reconsideration, and public policymaking to follow their respective legal safeguards. It also leaves Halvorsen’s untimely substantive challenges unresolved on their merits.