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Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Apr 04 3:40 PM-18CV000758
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COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO
CIVIL DIVISION
James D. O’Neal, et al.,
Plaintiffs, CASE NO. 18CVH-01-758
-vs- JUDGE SERROTT
State of Ohio, et al.,
Defendants.
OPINION AND JUDGMENT ENTRY DENYING
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Rendered this 4" day of April, 2019.
SERROTT, JUDGE.
I. PRELIMINARY STATEMENT AND FACTS
This matter is before the Court upon the Plaintiffs, Jackson and O’Neal, Complaint seeking
declaratory and injunctive relief. The Plaintiffs are inmates awaiting execution having been
convicted and sentenced to death. The Plaintiffs claim the written protocol Defendants utilize to
implement the death sentence is a “rule” subject to the formal rule making procedures set forth in
R.C. Chapters § 111 and R.C. §119 and alleging the protocol is unconstitutional.! The Plaintiffs
seek injunctive relief halting the execution and a declaration that the protocol is invalid
Both the Plaintiffs and the Defendants have filed Motions for Summary Judgment. The
issues are fully briefed and ripe for decision.
'R.C. Chapters $111 and 119 require agency “rules” to be formally promulgated with public notice and sent to a
committee and filed with various state offices.
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II. SUMMARY JUDGMENT STANDARD
A Court may grant summary judgment if no genuine issue exists as to any material fact and
the moving party is entitled to judgment as a matter of law. Mers v. Dispatch Printing Co., 19 Ohio
St.3d 100 (1985). The parties do not dispute the facts in this case. The case turns on the legal issue
of whether the protocol is a “rule” and whether the protocol procedure violates R.C. §2949.22,
herein after referred to as the “Statute,” and the Constitution.
IIL. FACTS
The Defendants, specifically the Director of the Department of Rehabilitation and
Corrections, adopted a written protocol for the specific procedures to be followed in executing an
inmate under a death sentence. The Defendants did not file the protocol with any State entity nor
did the Defendants follow the R.C. Chapter §119 or R.C. Chapter §111 procedures for adopting a
tule. The Defendants have amended the protocol over time to address either Federal Court orders
or to address issues due to the unavailability of drugs. The protocol establishes a detailed procedure
to carry out the “lethal injection” legislatively mandated by R.C. §2949.22. The protocol calls for
the use of an LV. application of a cocktail of drugs along with other detailed procedures in carrying
out the death sentence.
The Plaintiffs claim the protocol is not authorized by the Statute, violates the terms of the
Statute, and is an unconstitutional delegation of authority to the agency. The Defendants counter
that the procedure is not a rule but a protocol that does not enlarge R.C. §2949.22 but rather
interprets the Statute and allows the legislative mandate to be carried out. The Defendants also
contend the protocol does not violate any terms of the Statute and is not an unconstitutional
delegation of authority because R.C. §5120.01 gives the director the right to implement a rule or
2
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policies to carry out the mandate of the Statute. A review of the applicable law establishes that the
protocol is not a rule subject to either R.C. Chapter §111 or R.C. §119. The protocol does not
violate the Statute and is not an unconstitutional delegation of legislative authority.
IV. APPLICABLE STATUTES AND ANALYSIS
1.The protocol is not a rule subject to formal promulgation procedures.
RC. §2949.22 the “lethal injection” execution Statute provides:
Except as provided in di ion (C) of this section, a death sentence shall be
executed by causing the application to the person, upon whom the sentence was
imposed, of a lethal injection of a drug or combination of drugs of sufficient
dosage to quickly and painlessly cause death. The application of the drug or
combination of drugs shall be continued until the person is dead. The warden of
the correctional institution in which the sentence is to be executed or another
person selected by the director of rehabilitation and correction shall ensure that
the death sentence was executed.
The Statute requires death by lethal injection of a drug, or combination of drugs, to quickly
and painlessly cause death. The Statute explicitly gives the warden of the facility, or anyone
selected by the director, the duty to ensure that the death sentence is executed. Obviously,
“executing” the death sentence requires the director to have a policy, or protocol, in order to carry
out the execution. The Statute itself therefore gives the director, or other designee, the authority to
carry out the mandate of the Statute
RC. Chapter §5120 also grants the Director broad executive powers to fulfill the duties
imposed on the Director to supervise and carry out the efficient function of the State institutions.
This plenary grant of legislative authority to the Director is constitutional and grants the Director
the authority to adopt a policy or protocol to carry out the mandate in R.C. §2949.22.
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Not every agency policy or protocol is a “rule” subject to the formal promulgation
procedures set forth in R.C. Chapters §119 and §111 The litmus legal test for whether an agency
policy is a rule subject to formal promulgation is whether the policy enlarges a statute or merely
interprets it. State ex rel. Saunders v. Indus. Comm’n., (2004), 101 Ohio St.3d 125. Ifa policy, or
protocol, enlarges a statute it is a rule that must be promulgated pursuant to all the formal
procedures set forth in R.C. Chapters §119 and §111. If the policy merely interprets a statute it is
exempt from those requirements. Id. at [27
A classic example of this principle of law is set forth in the case of Princeton City School
Dist. Bd. Of Edn. V. Ohio State Board of Edn., (1994), 96 Ohio App.3d 558. In the Princeton case,
the legislature enacted R.C. §3301.0714 which mandated a computer network system for public
schools and directed the State Board of Education (“The Board”) to develop guidelines for
establishment of the system and required data to be collected. The statute did not expressly provide
for what exact data was to be collected and how it was to be stored. The Board passed “guidelines”
on the methods to identify, collect and store data. The Board did not follow the formal process for
“rules” in adopting the guidelines.
Four local Boards of Education filed a Declaratory Judgment action against the State Board
alleging the “guidelines” were a rule subject to R.C. Chapters §119 and §111 and the formal rule
making process. The Court of Appeals rejected this contention ruling that the “guidelines” only
controlled the methods and procedures by which the duties in the statute must be performed.
Therefore, the Court reasoned the guidelines did not enlarge the scope of the statute but merely
interpreted it and provided methods to implement the statutory mandate. Therefore, the Court ruled
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the guidelines were not subject to the rule making process. Notably, the Ohio Supreme Court in
Saunders cited the Princeton case with approval of its reasoning and result. Saunders, Id.{’s 33-35.
The Saunders case is controlling with regard to the case at bar. The execution protocol does
not enlarge the Statute. The Statute mandates that the Director carry out the execution of persons
under a death sentence by “lethal injection.” The Statute is silent regarding the exact details as to
how the Director is to carry out its directive. The protocol is merely a method or procedure to carry
out the Statute’s mandate of “lethal injection.” The protocol does not enlarge the Statute nor does it
change any part of the Statute. For example, the protocol does not permit death by hanging or by
firing squad. If it did the protocol would expand or enlarge the Statute and be subject to all the
statutory formal requirements to promulgate a rule.
The Court also agrees with the Director’s argument that if the Statute did authorize hanging
as a method of execution, any protocol for carrying out the mandate would be subject to the same
litigation as filed herein. The Plaintiffs’ would argue that the length of the rope, the height of the
scaffold, the type of rope, etc. would all be subject to the formal rule making process. The
Plaintiffs’ position would undermine the entire policy reason for delegating authority to an agency
to carry out the mandate of the Legislature. The Legislature delegates because an agency carrying
out a specific mandate has the expertise and is in the best position to provide the methods and
details necessary to comply with the Statute. Princeton City School v. Ohio Bd. Of Educ., (1944)
96 Ohio App.3d 558, 564-565. Agencies were created by the Legislature for this very reason.
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The Legislature does not have the time, resources, or expertise to enact Statutes with minute details
as to how agencies should fulfill its day to day operations or perform its statutory obligations.”
This Court’s ruling in this regard is further buttressed by R.C.§111.15(A)(3) which defines
an “internal management rule” as “any rule or standard governing... the operations within an
agency. » An internal management rule or standard is exempt from the filing of the rule with any
State agency or department and exempts it from the formal R.C. Chapters §119 and §111
requirements. The protocol herein is an “internal management rule” which governs the operations
of the Department in carrying out the statutory duty of execution. Thus, in addition to the reasoning
supra, R.C. §111.15 also exempts the protocol from the requirements Plaintiffs’ claim must be
followed.
Therefore, for all these reasons the protocol is exempt from formal rulemaking requirements
and is a valid method of enforcing R.C. §2949.22. The Statute requires the Director to implement
its mandate and thus there is no unconstitutional delegation of authority in this case. Finally, the
Director’s adoption of the protocol did not exceed the scope of his authority either under R.C.
Chapter §5120 or under §2949.22. The Director had the lawful authority and the duty to carry out
the statutory execution mandate and the protocol was in all aspects lawfully adopted.
? The Court may not be convinced the Department of Rehabilitation and Corrections is the “best” agency to develop
a detailed “death by injection protocol.” Perhaps that task should be assigned to medical professionals. The Court
may even question the ultimate efficacy or morality of the death penalty and whether it serves the purposes
proponents claim. However, these are policy matters that our Constitution entrusts to the Legislature. The
Legislature by statute designated the warden, or Director, to carry out the mandate of death by lethal injection. This
Court took an oath to follow the law and “support the Constitution.” The Court, despite possible reservations
regarding the death penalty, has and will follow the law and support the Constitution. In the last two years, this
Court has presided over two full death penalty jury trials to verdict and faithfully followed the law.
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2. The use of an I.V. as a method of carrying out “legal injection” does not conflict
with R.C. §2949.22.
The term “injection” is not defined in the execution Statute. An IV. is the introduction of
drugs into the veins using a needle. (No one can seriously argue that the LV. method does not
cause a needle to be injected into a vein.) The plain language of the Statute requires “lethal
injection.” An LV. is an injection because a needle is inserted into the vein. The 1 V. method of
injection comports with and does not conflict with the plain language of the Statute. The Court
rejects this contention.
3. The protocol does not circumvent the “quick and painless” requirement of the
Statute.
The Ohio Supreme Court has ruled that the “quick and painless” requirement of the Statute
only applies once the drugs flow into the inmate’s body. State v. Broom, 2012-Ohio-587, aff'd,
146 Ohio St.3d 60. The Plaintiffs have offered no reliable evidence that the protocol does not
provide for a quick and painless death.
The Statute expressly authorizes lethal injection as the method of death. The protocol is a
reasonable and detailed procedure to carry out the execution in the most humane manner as is
possible. The protocol, through its use of the “cocktail” of drugs, is designed to make the death as
“quick and painless” as possible.
A Court must give due deference to an administrative interpretation formulated by an
agency that has the expertise in a particular subject area and to which the legislature has delegated
3 The Court parenthetically notes The Constitution does not guarantee a “painless” death in the execution of a death
sentence. Bucklew v. Precythe. The Director, Missouri Dept. of Corrections, et al., 507 U.S. __ (April 1, 2019).
7
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the responsibility of implementing Statute. Princeton City School Dist. Bd of Educ. v. Ohio State
Bd. Of Educ., (1994) 96 Ohio App.3d 558, 564-565
The Legislature, through its mandate to the Director in R.C. §2949.22, empowered the
Director to choose the best procedures and processes to implement execution by legal injection.
Based upon the record before this Court, the Court cannot conclude that the protocol violates any
provision of the Statute. Further, a Court should not “second guess” the procedures utilized by the
Director especially given the Court’s mandate to defer to an administrative agency’s expertise.
4, The protocol does not “impede the right” to counsel.
The Plaintiffs cite no case or constitutional authority supporting its contention that the
protocol “impedes the right to counsel.” The protocol provides for the right to counsel. The
protocol violates no statute or constitutional provision of the right to counsel in the execution
process. The rights of the inmate are protected and there is meaningful access to counsel in the
protocol.
5. All other arguments made by Defendant O’Neal are unavailing.
Plaintiff, O’Neal, makes a number of arguments alleging that the protocol either violates the
Statute or that the protocol causes “sequential stages of death.” These arguments are set forth at pp.
22-27 of his memorandum. The Court finds these arguments unavailing. The Legislature in its
“wisdom,” or even “lack of wisdom,”statutorily delegated the execution mandate and methods to
implement death by injection to the Director. The protocol is a detailed and humane method (if
there is a humane method to impose death) in carrying out that mandate. The protocol comports in
all aspects with the Statute and the Court rejects arguments otherwise.
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It is not the function of the Court to rewrite the execution Statute nor does the Court have
the authority to strike down a protocol lawfully adopted. The protocol provides logical and
reasonable methods to carry out the mandate of the execution Statute.
There is no genuine issue as to any material fact in this case. The parties agree on the facts
and this is why all parties moved for Summary Judgment. The issue is whether the Plaintiffs or the
Defendants are entitled to judgment as a matter of law. The Defendants are entitled to judgment as
a matter of law
For all the reasons set forth herein, the Court rules that Defendants are entitled to judgment
as a matter of law. The Plaintiffs are not entitled to judgment as a matter of law. Therefore, the
Plaintiffs’ Motions for Summary Judgment are DENIED and the Defendants’ Motions for
Summary Judgment are GRANTED. The case is dismissed with prejudice.
IT IS SO ORDERED.
Copies to: Charles A. Schneider, Esq
Zoe A. Saadey, Esq
S. Adele Shank, Esq. 150 East Gay Street, 16" Floor
3380 Tremont Rd., Suite 270 Columbus, Ohio 43215
Columbus, Ohio 43221-2112 Counsel for Defendants State of Ohio and
Counsel for Plaintiffs ODRC
Lawrence J. Greger, Esq Charles L. Wille, Esq.
120 West 2™ Street, Suite 1100 Liberty Tower 30 East Broad Street, 26" Floor
Dayton, Ohio 45402 Columbus, Ohio 43215-3428
Counsel for Plaintiffs Counsel for Defendants State of Ohio and
ODRC
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Apr 04 3:40 PM-18CV000758
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Franklin County Court of Common Pleas
Date: 04-04-2019
Case Title: JAMES D ONEAL ET AL -VS- OHIO STATE ET AL
Case Number: 18CV000758
Type: SUMMARY JUDGMENT FOR DEFENDANT
It Is So Ordered.
Vth ‘ Ce Jie
/s/ Judge Mark A. Serrott
Electronically signed on 2019-Apr-04 page 10 of 10
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Court Disposition
Case Number: 18CV000758
Case Style: JAMES D ONEAL ET AL -VS- OHIO STATE ET AL
Case Terminated: 18 - Other Terminations
Motion Tie Off Information:
1. Motion CMS Document Id: 18CV000758201 9-02-0499980000
Document Title: 02-04-2019-MOTION FOR LEAVE TO FILE -
NON-PARTY: CLEVELAND JACKSON
Disposition: MOTION GRANTED
2. Motion CMS Document Id: 18CV0007582019-01-2599850000
Document Title: 01-25-2019- MOTION FOR SUMMARY
JUDGMENT - DEFENDANT: OHIO STATE
Disposition: MOTION GRANTED
3. Motion CMS Document Id: 18CV000758201 9-01 -2599890000
Document Title: 01-25-2019-MOTION FOR SUMMARY
JUDGMENT - PLAINTIFF: JAMES D. ONEAL
Disposition: MOTION DENIED
4. Motion CMS Document Id: 18CV000758201 9-01 -2599980000
Document Title: 01-25-2019-MOTION FOR SUMMARY
JUDGMENT - NON-PARTY: CLEVELAND JACKSON
Disposition: MOTION DENIED
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Apr 04 3:40 PM-18CV000758 OE609 - D7 COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO CIVIL DIVISION James D. O’Neal, et al., Plaintiffs, CASE NO. 18CVH-01-758 -vs- JUDGE SERROTT State of Ohio, et al., Defendants. OPINION AND JUDGMENT ENTRY DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Rendered this 4" day of April, 2019. SERROTT, JUDGE. I. PRELIMINARY STATEMENT AND FACTS This matter is before the Court upon the Plaintiffs, Jackson and O’Neal, Complaint seeking declaratory and injunctive relief. The Plaintiffs are inmates awaiting execution having been convicted and sentenced to death. The Plaintiffs claim the written protocol Defendants utilize to implement the death sentence is a “rule” subject to the formal rule making procedures set forth in R.C. Chapters § 111 and R.C. §119 and alleging the protocol is unconstitutional.! The Plaintiffs seek injunctive relief halting the execution and a declaration that the protocol is invalid Both the Plaintiffs and the Defendants have filed Motions for Summary Judgment. The issues are fully briefed and ripe for decision. 'R.C. Chapters $111 and 119 require agency “rules” to be formally promulgated with public notice and sent to a committee and filed with various state offices. Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Apr 04 3:40 PM-18CV000758 OE609 - D80 II. SUMMARY JUDGMENT STANDARD A Court may grant summary judgment if no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. Mers v. Dispatch Printing Co., 19 Ohio St.3d 100 (1985). The parties do not dispute the facts in this case. The case turns on the legal issue of whether the protocol is a “rule” and whether the protocol procedure violates R.C. §2949.22, herein after referred to as the “Statute,” and the Constitution. IIL. FACTS The Defendants, specifically the Director of the Department of Rehabilitation and Corrections, adopted a written protocol for the specific procedures to be followed in executing an inmate under a death sentence. The Defendants did not file the protocol with any State entity nor did the Defendants follow the R.C. Chapter §119 or R.C. Chapter §111 procedures for adopting a tule. The Defendants have amended the protocol over time to address either Federal Court orders or to address issues due to the unavailability of drugs. The protocol establishes a detailed procedure to carry out the “lethal injection” legislatively mandated by R.C. §2949.22. The protocol calls for the use of an LV. application of a cocktail of drugs along with other detailed procedures in carrying out the death sentence. The Plaintiffs claim the protocol is not authorized by the Statute, violates the terms of the Statute, and is an unconstitutional delegation of authority to the agency. The Defendants counter that the procedure is not a rule but a protocol that does not enlarge R.C. §2949.22 but rather interprets the Statute and allows the legislative mandate to be carried out. The Defendants also contend the protocol does not violate any terms of the Statute and is not an unconstitutional delegation of authority because R.C. §5120.01 gives the director the right to implement a rule or 2 Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Apr 04 3:40 PM-18CV000758 OE609 - D81 policies to carry out the mandate of the Statute. A review of the applicable law establishes that the protocol is not a rule subject to either R.C. Chapter §111 or R.C. §119. The protocol does not violate the Statute and is not an unconstitutional delegation of legislative authority. IV. APPLICABLE STATUTES AND ANALYSIS 1.The protocol is not a rule subject to formal promulgation procedures. RC. §2949.22 the “lethal injection” execution Statute provides: Except as provided in di ion (C) of this section, a death sentence shall be executed by causing the application to the person, upon whom the sentence was imposed, of a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death. The application of the drug or combination of drugs shall be continued until the person is dead. The warden of the correctional institution in which the sentence is to be executed or another person selected by the director of rehabilitation and correction shall ensure that the death sentence was executed. The Statute requires death by lethal injection of a drug, or combination of drugs, to quickly and painlessly cause death. The Statute explicitly gives the warden of the facility, or anyone selected by the director, the duty to ensure that the death sentence is executed. Obviously, “executing” the death sentence requires the director to have a policy, or protocol, in order to carry out the execution. The Statute itself therefore gives the director, or other designee, the authority to carry out the mandate of the Statute RC. Chapter §5120 also grants the Director broad executive powers to fulfill the duties imposed on the Director to supervise and carry out the efficient function of the State institutions. This plenary grant of legislative authority to the Director is constitutional and grants the Director the authority to adopt a policy or protocol to carry out the mandate in R.C. §2949.22. Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Apr 04 3:40 PM-18CV000758 OE609 - D82 Not every agency policy or protocol is a “rule” subject to the formal promulgation procedures set forth in R.C. Chapters §119 and §111 The litmus legal test for whether an agency policy is a rule subject to formal promulgation is whether the policy enlarges a statute or merely interprets it. State ex rel. Saunders v. Indus. Comm’n., (2004), 101 Ohio St.3d 125. Ifa policy, or protocol, enlarges a statute it is a rule that must be promulgated pursuant to all the formal procedures set forth in R.C. Chapters §119 and §111. If the policy merely interprets a statute it is exempt from those requirements. Id. at [27 A classic example of this principle of law is set forth in the case of Princeton City School Dist. Bd. Of Edn. V. Ohio State Board of Edn., (1994), 96 Ohio App.3d 558. In the Princeton case, the legislature enacted R.C. §3301.0714 which mandated a computer network system for public schools and directed the State Board of Education (“The Board”) to develop guidelines for establishment of the system and required data to be collected. The statute did not expressly provide for what exact data was to be collected and how it was to be stored. The Board passed “guidelines” on the methods to identify, collect and store data. The Board did not follow the formal process for “rules” in adopting the guidelines. Four local Boards of Education filed a Declaratory Judgment action against the State Board alleging the “guidelines” were a rule subject to R.C. Chapters §119 and §111 and the formal rule making process. The Court of Appeals rejected this contention ruling that the “guidelines” only controlled the methods and procedures by which the duties in the statute must be performed. Therefore, the Court reasoned the guidelines did not enlarge the scope of the statute but merely interpreted it and provided methods to implement the statutory mandate. Therefore, the Court ruled Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Apr 04 3:40 PM-18CV000758 OE609 - D8 the guidelines were not subject to the rule making process. Notably, the Ohio Supreme Court in Saunders cited the Princeton case with approval of its reasoning and result. Saunders, Id.{’s 33-35. The Saunders case is controlling with regard to the case at bar. The execution protocol does not enlarge the Statute. The Statute mandates that the Director carry out the execution of persons under a death sentence by “lethal injection.” The Statute is silent regarding the exact details as to how the Director is to carry out its directive. The protocol is merely a method or procedure to carry out the Statute’s mandate of “lethal injection.” The protocol does not enlarge the Statute nor does it change any part of the Statute. For example, the protocol does not permit death by hanging or by firing squad. If it did the protocol would expand or enlarge the Statute and be subject to all the statutory formal requirements to promulgate a rule. The Court also agrees with the Director’s argument that if the Statute did authorize hanging as a method of execution, any protocol for carrying out the mandate would be subject to the same litigation as filed herein. The Plaintiffs’ would argue that the length of the rope, the height of the scaffold, the type of rope, etc. would all be subject to the formal rule making process. The Plaintiffs’ position would undermine the entire policy reason for delegating authority to an agency to carry out the mandate of the Legislature. The Legislature delegates because an agency carrying out a specific mandate has the expertise and is in the best position to provide the methods and details necessary to comply with the Statute. Princeton City School v. Ohio Bd. Of Educ., (1944) 96 Ohio App.3d 558, 564-565. Agencies were created by the Legislature for this very reason. Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Apr 04 3:40 PM-18CV000758 OE609 - DB4 The Legislature does not have the time, resources, or expertise to enact Statutes with minute details as to how agencies should fulfill its day to day operations or perform its statutory obligations.” This Court’s ruling in this regard is further buttressed by R.C.§111.15(A)(3) which defines an “internal management rule” as “any rule or standard governing... the operations within an agency. » An internal management rule or standard is exempt from the filing of the rule with any State agency or department and exempts it from the formal R.C. Chapters §119 and §111 requirements. The protocol herein is an “internal management rule” which governs the operations of the Department in carrying out the statutory duty of execution. Thus, in addition to the reasoning supra, R.C. §111.15 also exempts the protocol from the requirements Plaintiffs’ claim must be followed. Therefore, for all these reasons the protocol is exempt from formal rulemaking requirements and is a valid method of enforcing R.C. §2949.22. The Statute requires the Director to implement its mandate and thus there is no unconstitutional delegation of authority in this case. Finally, the Director’s adoption of the protocol did not exceed the scope of his authority either under R.C. Chapter §5120 or under §2949.22. The Director had the lawful authority and the duty to carry out the statutory execution mandate and the protocol was in all aspects lawfully adopted. ? The Court may not be convinced the Department of Rehabilitation and Corrections is the “best” agency to develop a detailed “death by injection protocol.” Perhaps that task should be assigned to medical professionals. The Court may even question the ultimate efficacy or morality of the death penalty and whether it serves the purposes proponents claim. However, these are policy matters that our Constitution entrusts to the Legislature. The Legislature by statute designated the warden, or Director, to carry out the mandate of death by lethal injection. This Court took an oath to follow the law and “support the Constitution.” The Court, despite possible reservations regarding the death penalty, has and will follow the law and support the Constitution. In the last two years, this Court has presided over two full death penalty jury trials to verdict and faithfully followed the law. Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Apr 04 3:40 PM-18CV000758 OE609 - D8 2. The use of an I.V. as a method of carrying out “legal injection” does not conflict with R.C. §2949.22. The term “injection” is not defined in the execution Statute. An IV. is the introduction of drugs into the veins using a needle. (No one can seriously argue that the LV. method does not cause a needle to be injected into a vein.) The plain language of the Statute requires “lethal injection.” An LV. is an injection because a needle is inserted into the vein. The 1 V. method of injection comports with and does not conflict with the plain language of the Statute. The Court rejects this contention. 3. The protocol does not circumvent the “quick and painless” requirement of the Statute. The Ohio Supreme Court has ruled that the “quick and painless” requirement of the Statute only applies once the drugs flow into the inmate’s body. State v. Broom, 2012-Ohio-587, aff'd, 146 Ohio St.3d 60. The Plaintiffs have offered no reliable evidence that the protocol does not provide for a quick and painless death. The Statute expressly authorizes lethal injection as the method of death. The protocol is a reasonable and detailed procedure to carry out the execution in the most humane manner as is possible. The protocol, through its use of the “cocktail” of drugs, is designed to make the death as “quick and painless” as possible. A Court must give due deference to an administrative interpretation formulated by an agency that has the expertise in a particular subject area and to which the legislature has delegated 3 The Court parenthetically notes The Constitution does not guarantee a “painless” death in the execution of a death sentence. Bucklew v. Precythe. The Director, Missouri Dept. of Corrections, et al., 507 U.S. __ (April 1, 2019). 7 Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Apr 04 3:40 PM-18CV000758 OE609 - D8 the responsibility of implementing Statute. Princeton City School Dist. Bd of Educ. v. Ohio State Bd. Of Educ., (1994) 96 Ohio App.3d 558, 564-565 The Legislature, through its mandate to the Director in R.C. §2949.22, empowered the Director to choose the best procedures and processes to implement execution by legal injection. Based upon the record before this Court, the Court cannot conclude that the protocol violates any provision of the Statute. Further, a Court should not “second guess” the procedures utilized by the Director especially given the Court’s mandate to defer to an administrative agency’s expertise. 4, The protocol does not “impede the right” to counsel. The Plaintiffs cite no case or constitutional authority supporting its contention that the protocol “impedes the right to counsel.” The protocol provides for the right to counsel. The protocol violates no statute or constitutional provision of the right to counsel in the execution process. The rights of the inmate are protected and there is meaningful access to counsel in the protocol. 5. All other arguments made by Defendant O’Neal are unavailing. Plaintiff, O’Neal, makes a number of arguments alleging that the protocol either violates the Statute or that the protocol causes “sequential stages of death.” These arguments are set forth at pp. 22-27 of his memorandum. The Court finds these arguments unavailing. The Legislature in its “wisdom,” or even “lack of wisdom,”statutorily delegated the execution mandate and methods to implement death by injection to the Director. The protocol is a detailed and humane method (if there is a humane method to impose death) in carrying out that mandate. The protocol comports in all aspects with the Statute and the Court rejects arguments otherwise. Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Apr 04 3:40 PM-18CV000758 OE609 - D87 It is not the function of the Court to rewrite the execution Statute nor does the Court have the authority to strike down a protocol lawfully adopted. The protocol provides logical and reasonable methods to carry out the mandate of the execution Statute. There is no genuine issue as to any material fact in this case. The parties agree on the facts and this is why all parties moved for Summary Judgment. The issue is whether the Plaintiffs or the Defendants are entitled to judgment as a matter of law. The Defendants are entitled to judgment as a matter of law For all the reasons set forth herein, the Court rules that Defendants are entitled to judgment as a matter of law. The Plaintiffs are not entitled to judgment as a matter of law. Therefore, the Plaintiffs’ Motions for Summary Judgment are DENIED and the Defendants’ Motions for Summary Judgment are GRANTED. The case is dismissed with prejudice. IT IS SO ORDERED. Copies to: Charles A. Schneider, Esq Zoe A. Saadey, Esq S. Adele Shank, Esq. 150 East Gay Street, 16" Floor 3380 Tremont Rd., Suite 270 Columbus, Ohio 43215 Columbus, Ohio 43221-2112 Counsel for Defendants State of Ohio and Counsel for Plaintiffs ODRC Lawrence J. Greger, Esq Charles L. Wille, Esq. 120 West 2™ Street, Suite 1100 Liberty Tower 30 East Broad Street, 26" Floor Dayton, Ohio 45402 Columbus, Ohio 43215-3428 Counsel for Plaintiffs Counsel for Defendants State of Ohio and ODRC Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Apr 04 3:40 PM-18CV000758 OE609 - D88 Franklin County Court of Common Pleas Date: 04-04-2019 Case Title: JAMES D ONEAL ET AL -VS- OHIO STATE ET AL Case Number: 18CV000758 Type: SUMMARY JUDGMENT FOR DEFENDANT It Is So Ordered. Vth ‘ Ce Jie /s/ Judge Mark A. Serrott Electronically signed on 2019-Apr-04 page 10 of 10 Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Apr 04 3:40 PM-18CV000758 OE609 - D8 Court Disposition Case Number: 18CV000758 Case Style: JAMES D ONEAL ET AL -VS- OHIO STATE ET AL Case Terminated: 18 - Other Terminations Motion Tie Off Information: 1. Motion CMS Document Id: 18CV000758201 9-02-0499980000 Document Title: 02-04-2019-MOTION FOR LEAVE TO FILE - NON-PARTY: CLEVELAND JACKSON Disposition: MOTION GRANTED 2. Motion CMS Document Id: 18CV0007582019-01-2599850000 Document Title: 01-25-2019- MOTION FOR SUMMARY JUDGMENT - DEFENDANT: OHIO STATE Disposition: MOTION GRANTED 3. Motion CMS Document Id: 18CV000758201 9-01 -2599890000 Document Title: 01-25-2019-MOTION FOR SUMMARY JUDGMENT - PLAINTIFF: JAMES D. ONEAL Disposition: MOTION DENIED 4. Motion CMS Document Id: 18CV000758201 9-01 -2599980000 Document Title: 01-25-2019-MOTION FOR SUMMARY JUDGMENT - NON-PARTY: CLEVELAND JACKSON Disposition: MOTION DENIED