Kelley v. Johnson

2016 Ark. 268

496 S.W.3d 346

Wendy Kelley, in Her Official Capacity as Director, Arkansas Department of Correction; and Arkansas Department of Correction, Appellants

v.Stacey Johnson, Jason McGehee, Bruce Ward, Terrick Nooner, Jack Jones, Marcel Williams, Kenneth Williams, Don Davis, and Ledell Lee, Appellees

No. CV–15–992

Supreme Court of Arkansas.

Opinion Delivered: June 23, 2016

Rehearing Denied July 21, 2016.

Leslie Rutledge, Att'y Gen., by: Lee P. Rudofsky, Solicitor General, and Jennifer L. Merritt, Ass't Att'y Gen., for appellants.

John C. Williams, Little Rock, Federal Public Defender Office; and Jeff Rosenzweig, for appellees.

COURTNEY HUDSON GOODSON, Associate Justice

Appellants Wendy Kelley, in her official capacity as Director of the Arkansas Department of Correction, and the Arkansas Department of Correction (collectively “ADC”) appeal the orders entered by the Pulaski County Circuit Court denying their motions to dismiss and for summary judgment against multiple claims challenging the constitutionality of Act 1096 of 2015 brought by appellees Stacey Johnson, Jason McGehee, Bruce Ward, Terrick Nooner, Jack Jones, Marcel Williams, Don Davis, and Ledell Lee (collectively “Prisoners”). For reversal, ADC contends that the Prisoners failed to sufficiently plead and prove their asserted constitutional violations in order to overcome the defense of sovereign immunity. We reverse the circuit court's decision in toto and dismiss the Prisoners' amended complaint.

I. Factual Background

This litigation was initiated by the Prisoners who are under sentences of death for capital murder, and the issues are centered on Act 1096 of 2015 (the “Act”), which is codified at Arkansas Code Annotated section 5–4–617 (Supp. 2015). The Act establishes the current method by which executions are to be conducted in Arkansas.

The Act amends the previous method-of-execution statute, formerly found at Arkansas Code Annotated section 5–4–617 (Repl. 2013), that was passed into law by Act 139 of 2013. Under Act 139, the protocol entailed the intravenous administration of a benzodiazepine to be followed by a “lethal injection of a barbiturate in an amount sufficient to cause death.” Ark.Code Ann. § 5–4–617(a) & (b) (Repl. 2013). It also exempted information about execution procedures and their implementation from the Arkansas Freedom of Information Act (FOIA). Ark.Code Ann. § 5–4–617(g) (Repl. 2013). The Prisoners, with the exception of Ledell Lee, previously brought a declaratory-judgment action against ADC in regard to Act 139. In that complaint, the Prisoners asserted, among other things, that Act 139 violated the separation-of-powers doctrine under the Arkansas Constitution because the statute delegated unbridled discretion to ADC in determining which drug was to be used for lethal injection. In connection with that lawsuit, the parties entered into a settlement agreement on June 14, 2013. Because ADC had decided not to employ the then existing lethal-injection protocol, the Prisoners agreed to forgo their as-applied claims contesting the constitutionality of the protocol in exchange for ADC's agreement to not raise the defense of res judicata should the Prisoners reassert an as-applied claim. Also as part of the settlement, ADC agreed to provide a copy of the new protocol, and once the selected drugs were obtained, to “disclose the packaging slips, package inserts, and box labels received from the supplier.” Ultimately, the Prisoners prevailed in the circuit court on their facial challenge to Act 139. However, this court reversed, holding that Act 139 did not violate separation of powers because the statute provided reasonable guidelines to ADC in determining the method to use in carrying out the death penalty. Hobbs v. McGehee, 2015 Ark. 116, 458 S.W.3d 707.¹

Act 1096 became effective on April 6, 2015, soon after our decision in McGehee. The salient features of the present Act are two-fold. First, it modifies the permissible means of execution by lethal injection:

(c) The department shall select one (1) of the following options for a lethal-injection protocol, depending on the availability of the drugs:

(1) A barbiturate; or

(2) Midazolam, followed by vecuronium bromide, followed by potassium chloride.

Ark.Code Ann. § 5–4–617(c) (Supp. 2015). Further, the Act provides that the drugs used to carry out the lethal injection shall be (1) approved by the United States Food and Drug Administration (FDA) and made by a manufacturer approved by the FDA; (2) obtained by a facility registered with the FDA; or (3) obtained from a compounding pharmacy that has been accredited by a national organization that accredits compounding pharmacies. Ark. Code Ann. § 5–4–617(d) (Supp. 2015). Like Act 139 of 2013, the Act also provides that the ADC shall carry out the sentence of death by electrocution if execution by lethal injection is invalidated by a final and unappealable court order. Ark.Code Ann. § 5–4–617(k) (Supp. 2015).

The second departure from the former law lies in the Act's nondisclosure provisions. While the Act maintains the previous FOIA exemption, it also contains the following confidentiality requirements:

(2) The department shall keep confidential all information that may identify or lead to the identification of:

(A) The entities and persons who participate in the execution process or administer the lethal injection; and

(B) The entities and persons who compound, test, sell, or supply the drug or drugs described in subsection (c) of this section, medical supplies, or medical equipment for the execution process.

(3) The department shall not disclose the information covered under this subsection in litigation without first applying to the court for a protective order regarding the information under this subsection.

Ark. Code Ann. § 5–4–617(i) & (j). As pertinent here, the Act permits ADC to make available to the public the following information, so long as the identification of the seller, supplier, or testing laboratory is redacted and maintained as confidential: package inserts and labels, if the drugs used in the protocol have been made by a manufacturer approved by the FDA; reports obtained from independent testing laboratories; and ADC's procedure for administering the drugs, including the contents of the lethal-injection drug box.

The Prisoners first filed suit in April 2015 against ADC in the Pulaski County Circuit Court, challenging the constitutionality of the Act. ADC removed the action to federal court. However, the Prisoners promptly dismissed the federal case without prejudice and returned to the circuit court with the filing of an amended complaint, asserting claims only under the Arkansas Constitution. In response to a motion to dismiss filed by ADC, the Prisoners filed the present action under a new case number.

During the course of the litigation, ADC informed the prisoners of its intent to execute them using the three-drug combination of Midazolam, vecuronium bromide, and potassium chloride. In connection with that disclosure, ADC provided to the Prisoners package inserts and labels for the drugs, redacting the identity of the supplier of the drugs, in accordance with the Act. ADC also provided the Prisoners with the lethal-injection protocol to be used in the executions. The protocol calls for a total dose of 500 milligrams of Midazolam, 100 milligrams of vecuronium bromide, and 240 milliequivalents of potassium chloride. On September 9, 2015, the State set execution dates for each of the Prisoners, except Ledell Lee. On application of the Prisoners, the circuit court issued a temporary restraining order staying the scheduled executions. On October 20, 2015, this court granted ADC's petition for writ of certiorari to lift the stays of execution erroneously ordered by the circuit court, based on the holding that a circuit court, in no uncertain terms, lacks the authority to stay executions. Kelley v. Griffen, 2015 Ark. 375, 472 S.W.3d 135. However, we simultaneously granted the Prisoners' request to stay their executions pending the resolution of the underlying litigation. Id.

Meanwhile, on September 28, 2015, the Prisoners filed an amended complaint, which is the operative pleading at issue in this appeal. The amended complaint contains separate causes of action that fall into two categories: claims challenging the constitutionality of the Act's nondisclosure provisions regarding the identity of the supplier of the drugs, and claims challenging the constitutionality of the selected method of execution. Each claim is made under the Arkansas Constitution. With respect to nondisclosure, the Prisoners alleged that the confidentiality provisions of the Act (1) violate the Contract Clause, found at article 2, section 17, by impairing the disclosure obligations undertaken by ADC in the June 2013 settlement agreement; (2) offend the freedoms of speech and of the press guaranteed by article 2, section 6; (3) violate their rights to procedural protections that are part of the Cruel or Unusual Punishment Clause set forth in article 2, section 9; (4) transgress the right to procedural due process under article 2, section 8; (5) violate separation of powers by precluding adequate judicial review of the means of execution; and (6) are contrary to the Publication Clause found at article 19, section 12. Regarding the means of execution, the Prisoners alleged that (1) implementation of the Act violates the right of substantive due process found in article 2, section 8 of the Arkansas Constitution ; (2) the Act violates separation of powers under article 4 by delegating unfettered discretion to ADC; (3) execution using either the three-drug-Midazolam protocol, compounded drugs, or electrocution constitutes cruel or unusual punishment under article 2, section 9; and (4) the Act violates the Ex Post Facto Clause of article 2, section 17.

ADC filed a motion to dismiss the amended complaint on the ground of sovereign immunity. In the motion, ADC argued...