Williams v. Commonwealth

Terrance Williams; Richard Laird; Robert Wharton; Hubert Michael, Michael E. Ballard,individually and on behalf of all others similarly situated, Petitioners v. Commonwealth of Pennsylvania Department of Corrections, Respondent

No. 353 M.D. 2014

COMMONWEALTH COURT OF PENNSYLVANIA

Argued: March 11, 2015

October 15, 2015

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judgeh HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McGINLEY

Presently before this Court are the Department of Corrections' (DOC) Preliminary Objections (POs) to a Second Amended Class Action Petition for Review in the Nature of a Complaint in Equity (Petition).¹ Petitioners bring thisaction on behalf of themselves and a class of all 184 inmates sentenced to death in the Commonwealth.

I. Brief History.

In 1990, the General Assembly adopted the following method of execution: "[t]he death penalty shall be inflicted by injecting the convict with a continuous intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in combination with chemical paralytic agents approved by the department until death is pronounced by the coroner." 61 Pa. C.S. § 4304(a)(1); Amended Petition ¶ 23 at 8.

The DOC first promulgated the lethal injection execution protocol (Protocol) to implement the statute in April of 1991 and revised the procedures on multiple occasions, most recently in 2012.²

II. Petitioners' Amended Petition.

Petitioners seek declaratory and injunctive relief. Petitioners request this Court to declare the DOC's Protocol invalid and unlawful.

5. Pennsylvania prescribes that the death penalty shall be inflicted by injecting the condemned inmate with a lethal combination of two types of drugs- 'an ultrashort-acting barbiturate' and 'chemical paralytic agents.' 61 Pa.C.S.A. [sic] § 4304(a)(1).

6. The General Assembly adopted this method of execution in 1990, after extensive fact-finding, testimony, and public debate.

7. In April 1991, the DOC promulgated Pennsylvania's first lethal injection procedures to implement [61 Pa.C.S.] § 4304. The DOC has revised and adopted new procedures on multiple occasions, and in 2012, the DOC adopted the current execution protocol....

8. Contrary to the statute, the protocol dictates that lethal injections will be administered with three different types of drugs. The first drug, pentobarbital, and the third drug potassium chloride, do not fall under either drug type authorized by the legislature. Further, the protocol fails to use 'an ultrashort-acting barbiturate,' as required by statute.

9. The current protocol exceeds the statutory grant, conflicts with the express terms of the statute, and is inconsistent with the purpose of the statute, which was to adopt the most 'humane' method of execution. The DOC's selection of lethal injection drugs outside the statutory grant undermines the Legislature's decision to reserve for itself the selection of the types of drugs that will be used in executions.

10. The DOC adopted the execution protocol in secret, without public notice, hearing, or comment. The DOC is required to follow a formal rule-making process when, as here, it promulgates new regulations or amends existing ones. See 45 P.S. §§ 1102, 1201-1208 (the Commonwealth Documents Law or 'CDL')³; 71 P.S. §§ 745.1-745.15 (the Regulatory Review Act or 'RRA')⁴; 71 P.S. §§ 732-101- 732-506 (the Commonwealth Attorneys Act or 'CAA')⁵. Because the DOC failed tofollow these mandatory processes, the execution protocol is a nullity.

11. In addition, the protocol is unreasonable because it conflicts with other provisions of state and federal law, including restrictions that prohibit pharmacies from providing controlled substances without valid medical prescriptions, restrictions that prohibit pharmacies from selling certain compounded drugs, and restrictions that prohibit registered nurses and paramedics from administering the lethal drugs or otherwise participating in executions.

....

27. Pentobarbital is neither an ultrashort-acting barbiturate nor a chemical paralytic agent. Pancuronium bromide is a chemical paralytic agent. Potassium chloride is neither an ultrashort-acting barbiturate nor a chemical paralytic agent. (Emphasis added.)

28. The sections of the execution protocol relevant to this lawsuit consist of rules and regulations. The protocol was promulgated under the authority of a statute that DOC administers and which prescribes practices and procedures for the DOC.

29. The DOC is required to follow a formal rule-making process when it promulgates new rules and regulations or amends existing ones.

30. The DOC adopted and amended the execution protocol without public notice, hearing, or comment. In adopting and amending the protocol, the DOC did not follow the requirements of the CDL, 45 P.S. §§ 1102, 1201-1208, the RRA, 71 P.S. §§ 745.1-745.15, or the CAA, 71 P.S. §§ 732-101- 732-506.

31. Under the protocol, DOC obtains lethal injection drugs, including compounded drugs, from one or more pharmacies. The protocol is unreasonable because, under the federal Food, Drug, and Cosmetic Act (FDCA), DOC is prohibited from obtaining, and pharmacies are prohibited from providing, a compounded copy of an FDA-approved drug, like pentobarbital, throughinterstate commerce. See 21 U.S.C. §§ 502-505, 582; see also 21 U.S.C. §§ 331, 355.

32. Under the protocol, DOC obtains lethal injection drugs without a valid medical prescription. The protocol is unreasonable because, under the federal Controlled Substances Act (CSA)⁶ and the Pennsylvania Pharmacy Act⁷, DOC is prohibited from obtaining, and pharmacies are prohibited from providing, lethal injection drugs without a valid medical prescription. See 21 U.S.C. [§§ 801-971]; 63 P.S. [§§ 390-1- 390-13].

33. The DOC utilizes a 'Lethal Injection Team' (LIT) to administer an execution. The LIT's responsibilities include performing venipuncture and establishing intravenous lines in the condemned inmates, administering the lethal drugs, and participating in consciousness checks of the inmates.

34. ... Current members of the LIT are registered nurses and/or certified paramedics.

35. Registered nurses may perform venipuncture only when it has been 'ordered in writing for the patient by a doctor of the healing arts.' 49 Pa. Code § 21.12(a). The execution protocol is unreasonable because it conflicts with this statutory prerequisite. (Emphasis added.)

36. Registered nurses may administer anesthesia only if certified as a Registered Nurse Anesthetist, and only under the direction of, or in consultation with, a physician. 49 Pa. Code. [sic] §21.17. The execution protocol is unreasonable because it conflicts with these statutory prerequisites. (Emphasis added.)

37. Direct or indirect participation in an execution is contrary to the ethical standards of the nursing profession. Willful violation of the nursing laws or of ethical standards may be punished by suspension orrevocation of the nursing license, criminal prosecution, and/or a civil fine. 63 P.S. [§] 223; 63 P.S. [§] 224(a). The execution protocol is unreasonable because it conflicts with these ethical and statutory provisions.

38. Paramedics may lawfully administer only certain drugs, and a paramedic may lawfully administer other drugs only when acting under the orders of a physician. See 28 Pa. Code. [sic] § 1005.11. Absent a physician's order, paramedics may not lawfully administer sodium thiopental, pancuronium bromide, or potassium chloride....(Emphasis added.)

39. Direct or indirect participation in an execution is contrary to the ethical standards of the paramedic profession. Paramedics who willfully or negligently practice beyond the scope of their authorization face disciplinary or corrective action. See 28 Pa. Code § 1003.27. The execution protocol is unreasonable because it conflicts with these ethical and statutory provisions.

Exhaustion of Administrative Remedies

40. There is no administrative remedy available to Petitioners. DOC refuses to provide a copy of the execution protocol to death row inmates and, where an inmate files an administrative grievance as 'frivolous' and provides no administrative recourse.

....

Claims for Relief

Claim 1

The execution protocol adopted by the Department of Corrections exceeds and conflicts with the statutory authorization set forth in [Pa.C.S. 61] § 4304.⁸

Claim 2

The execution protocol adopted by the Department of Corrections violates the requirements of theCommonwealth Documents Law, 45 P.S. §§ 1102, 1201-1208, the Regulatory Review Act, 71 P.S. §§ 745.1-745.15, and the Commonwealth Attorneys Act, 71 P.S. §§ 732-101 to 732-506. The execution protocol is also unreasonable in that it conflicts with ethics provisions and with state and federal law, including the federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 502-505, 582; the federal Controlled Substances Act, 21 U.S.C. §§ 802, 822, 829; the Pennsylvania Pharmacy Act, 63 P.S. [§§ 390-1- 390-13]; as well as 28 Pa. Code. § 1005.11, 41 Pa. B. 2286, 49 Pa. Code § 21.12, 49 Pa. Code. § 21.17, 63 P.S. 223, and 63 P.S. 224(a).

Petition, August 26, 2014, ¶¶ 5-11, 27-40 at 2-3 and 9-12.

III. The DOC's Amended Preliminary Objections.

The DOC preliminarily objects to the Petition and asserts:

I. In the Nature of a Demurrer:

1. Claim I...fails to state any claim for which relief may be granted.

....

4. ...[T]he execution protocol does not impermissibly conflict with the statutory provisions [of Section 4304 of the Prisons and Parole Code (Code), 61 Pa. C.S. § 4304(a)(1)] and therefore Claim I should be dismissed because it fails to allege sufficient facts to provide any relief to petitioners. (Emphasis added.)

5. Claim II...fails to state a claim for which relief may be granted.

....

7. As a matter of law, this Court can review the provisions of the execution

...