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Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
CIVIL DIVISION
JAMES DERRICK O’NEAL, et al.,
Case No. 18-CV-000758
Plaintiffs,
Judge Mark A. Serrott
v.
THE STATE OF OHIO, et al.,
Defendants.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Defendants, the State of Ohio and the Ohio Department of Rehabilitation and Correction,
move this Court to grant Summary Judgment in their favor pursuant to Ohio Rule of Civil
Procedure 56. A memorandum in support is attached.
Respectfully submitted,
DAVE YOST
Ohio Attorney General
S/ Zoe A, Saadey
ZOE A. SAADEY (0089181)
CHARLES L. WILLE (0056444)
CHARLES A. SCHNEIDER (0005821)
Assistant Attorneys General
Criminal Justice Section, Capital Crimes Unit
150 East Gay Street, 16th Floor
Columbus, Ohio 43215
T: (614) 728-7055; F: (614) 728-9327
Zoe.Saadey@ohioattorneygeneral.gov
Charles. Wille@ohioattorneygeneral.gov
Charles.Schneider@ohioattorneygeneral.gov
Counsel for Defendants, State of Ohio and Ohio
Department of Rehabilitation and CorrectionFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ..0.0.0...0..ccccceccecssecseessecseessecsiesreeseesessressretsetietesetieetressesseesessesssesee dd
I ntroductiion oo... ccccesceecesseecseecsesseecseesseesetssetsessrecsiessesseseressiseressrstiseretssetiestsecareciessesseeeeee
IL. Statement of the Facts...
Til.
IV.
CERTIFICATE OF SERVICE o.0.....0..c0ccceccece cscs ses es eee seeeeseseetseseetiesresosiesiseseisenseetseteetnseetiets
A
The Defendants are entitled to summary judgment in their favor... cece
A.
B.
Comclusion .........eeccecc cesses ecsecseecsecseessecsesevessesresssecsessesseeseissnesanetsetsetseessessresiesseseeseenss
Since 1994, the Department of Rehabilitation and Correction has issued a
series of revised versions of a written policy directive or “protocol” which
sets forth the procedures the Department utilizes to carry out court-ordered
executions
The Department’s execution protocols and the resulting procedural
changes instituted by the Department have been public knowledge for
more than a decade... ..ccecccscsesessesseeesesssecseessecssecsnecseesenssesseeseretaretseeeveteseveteeetee
For nearly a decade, the Director’s discretion to make changes to the
Department’s execution protocol — without utilizing Ohio’s statutory
rulemaking procedures — has been recognized repeatedly in other litigation
involving these same Plaintiffs. 00.0.0... 0..cecceceesseesecseesseeeeesseessesssesseeretevetseetsecases
The Plaintiffs have not properly brought a claim under R.C. 2721.03.00...
Consistent with the Constitution of Ohio, the legislature has required the
Department to carry out executions by lethal injection, while vesting the
Department with discretion in choosing the procedures for doing $0. ...............
The manner in which the Director exercises the discretion to promulgate
the Department’s execution protocol reflects a valid legislative policy to
exclude the Department’s execution protocol from the formal, rulemaking
Under the equitable doctrine of laches, Plaintiffs’ unreasonable and
unexplained delay in bringing suit, and the resulting prejudice to the
interests of Ohio’s citizens, bars the relief they seek.
10
12
1S
221
24
25Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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TABLE OF AUTHORITIES
Page(s)
Cases
Inre Adoption of Uniform Rules and Regulations Relating to Valuation of Real
Property,
169 Ohio St. 445, 160 N.E.2d 275 (1959) o.c.cecece eccentric 3)
State ex rel. AFSCME v. Taft,
156 Ohio App.3d 37, 2004-Ohio-493, 804 N.E.2d 88 (3d Dist.) oo... cece eee 8
Arbogast v. Peterson, 91 Ohio App. 3d 22, 631 N.E.2d 673 (9th Dist. 1993) 0... LT, 18
Blue Cross of Northeast Ohio v. Ratchford,
64 Ohio St.2d 256, 416 N.E.2d 614 (1980) oo... cece cece tenes nesneeetsesetesseeeeeed 3
Calderon v. Thompson,
523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) oo... cece eteteset ener
Cooey v. Strickland,
479 F.3d 412 (6th Cir, 2007) .cccccccccccscsscsvsvesevsvssssssssssssssssssstsssssvesesssssesessssssssesssssssuieveeeve4
Cooey v. Strickland,
589 F.3d 210 (6th Cir. 2009) oo. c cece ce esses nesneseesneseesesresessestesesnssnsseeseesseseseesreeeeseel >
Cooey v. Strickland,
S.D.Ohio No. 2:04-cv-1156, 2007 U.S. Dist. LEXIS 67390 (Sep. 12, 2007) ........c.cceee 23
Cosby v. Franklin Cty. Dep't of Job & Family Servs.,
10th Dist. Franklin No. O7AP-41, 2007-Ohi0-6641 o.....cccccceesceeesteteestesesteteseeteseseeteesterene 2
State ex rel. Cuyahoga County Hospital vy. Ohio Bureau of Workers’
Compensation,
27 Ohio St.3d 25, 500 N.E.2d 1370 (1986)... ..ccecececccccceeeeesessesessestesesessnesecsnseessesresensressesseneD)
Fears v. Morgan (In re Ohio Execution Protocol),
860 F.3d 881 (6th Cir. 2017) oo. c ccc iets 5
Festi v. Ohio Adult Parole Auth.,
10th Dist. Franklin No. 04AP-1372, 2005-Ohi0-3622 0......ceceeecceeeeceeeeeeteeseeetesteeeeeene 6
Glossip v. Gross,
US. _, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015) ...ccccccsccsssssssecsssreesesessssssssessessssseteeesees5s 6
Ex parte Granviel,
561 S.W.2d 503 (Tex. Crim. App. 1978)...ccccssscsssssvesssssesecvssssessessessesessestessasestesievesvesseeneedFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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State ex rel. Gross v. Indus. Comm’n,
115 Ohio St.3d 249, 2007-Ohi0-4916, 874 N.E.2d 1162 .....c.ccccceecceeeeeteeeresestetetteesesieeeee 20
Harris v. Ohio Adult Parole Auth.,
10th Dist. Franklin Nos. OSAP-451, 04CVH-5489, 2005-Ohi0-5166 00... 16
Linger v. State Adult Parole Auth.,
10th Dist. Franklin No. 97APE04- 482, 1997 Ohio fo App. LEXIS 4625 5 (Oct 14,
1997). ce ceeseieeeeeeseenstsitesnineeviersvenssens - ceteris
Inre Ohio Execution Protocol Litig.,
906 F. Supp.2d 759 (S.D. Ohio 2012) ....cscssssssssssssssessesssesessvesvesesessesesseessesessitiiseesseveesseend
Ohio Farmers Ins. Co. v. Heisel,
143 Ohio St. 519 56 N.E.2d 151 (1944) o.oo. eecseesseeeseeseesseessessretsetsetesetsetsetsenseenee lO
OPUS II-VI Corp. v. Ohio State Bd. of Pharmacy,
109 Ohio App.3d 102, 671 N.E.2d 1087 (1996)...cccccscsssssssssssssssssessssvevevevesessssesssseseseserevveveees D7
Parrish v. Jones,
138 Ohio St.3d 23, 2013-Ohi0-5224, 3 NE.3d 155 oo. eecececsess tess essseeseessetevesseessesssensecsseeseeD
Plumbers & Steamfitters Joint Apprenticeship Committee v. Ohio Civil Rights
Com.,
66 Ohio St.2d 192, 421 N.E.2d 128 (1981) oo... eestor eeseseeeseseieresnetereceeeel L
Princeton City Sch. Dist., Bd. of Educ. v. Ohio State Bd. of Educ.,
96 Ohio App.3d 558, 645 N.E.2d 773 (Ist Dist. 1994) ....ccccccsesssssssssssssssseesevsenl7, 19
State ex rel. Saunders v. Indus. Comm'n,
101 Ohio St.3d 125, 2004-Ohio-339, 802 N.E.2d 650 oo....ceeccecceeeeeeeeeesesetesteeeseene 6
Sims v. Kernan,
30 Cal. App. 5th 105, 112 (2018) ...ccccccscssssssesssssesssesseesessesvesvesessssssersessietsiieesessvsavesseeeee 14
Sims v. State,
754 S0.2d 657 (Fla. 2000).........ccceccecees esses sseesseesseesetsesevetsetsesssecsetssssesssessseesetstsetseenee ld 5
State v. Broom,
146 Ohio St.3d 60, 2016-Ohi0-1028 oo... cece teeter eessesesiesieesiessessretitietretiteeeeeeds 14
State v. Brown,
156 Ohio App.3d 120, 2004-Ohio-558, 804 N.E.2d 1021 (10th Dist)... cee dD
State v, Deputy,
644 A.2d 411 (Del. Super, Ct, 1994) ...ccccccccssssssssesserssssssesuevessssrssueensessssisssssssessteenseseeseeed
iiiFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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State v. Ellis,
281 Neb. 571, 799 N.W.2d 267 (2011) ..ccececeesceseeceseseeceeeereeeetesesneresestesestereeesttettereessetetnereee A
State v. Glandon,
2nd Dist. Montgomery No. 20988, 2006-Ohi0-39 .0...0..cceccecceceeseceeteeetesees testers |
State v. Klinck,
44 Ohio St.3d 108, 541 N.E.2d 590 (1989) o.oo. cccceeeseeeeseeeeresteteeseeseetnseseeeeee lS
State v. Osborn,
102 Idaho 405, 631 P.2d 187 (1981)... cece eee eetesesnesteseenesetsnsessesseraeeee lS
State v. Rivera,
No. 04CR065940, No. 05CR068067 (Ohio Ct. of Comm. Pl. June 10, 2008)... 4 5S
State v. Steffen,
70 Ohio St.3d 399, 1994-Ohio-111, 639 N.E.2d 67 ....ccccccceccceceesececeeseess tess essreesetneeeeeneeeee 2S)
Textileather Corp. v. Korleski,
10th Dist. Franklin Nos. O6AP-955, O6AP-956, 2007-Ohi0-4129 oo... 18
State ex rel. Wean United, Inc. v. Industrial Comm'n of Ohio,
66 Ohio St.3d 272, 1993-Ohio-27, 611 N.E.2d 828 o.oo.
Wise v. Ohio Dep’t of Rehab. & Corr.,
84 Ohio App.3d 11, 616 N.E.2d 251 (10th Dist. 1992)... cecccecceeeceesteeees eerste ee 6
Statutes
RC. LLL DS(A)D) eccccccccsesessssessseeesessestventsssnsttvssstsnvinssstsssttmmnssstsesttessssssstmessssesessseeseees 16
R.C. 2721.08 oie eecceccceseecsesseessesesesseesseessessiecsssiessessiessssessesssissretsststsetssetseessecseeseeeeeeelO, 11, 15
R.C. 2949.22(A) ooo ccccscseesseesesssssssveessststtvnesssssttvnesststsvissstisstimmnssstsssiussssssstsssissssssseedy 20
RC. 2949.22(B) ooo eccccceessesessssesssessstestvtntsssstsvaesststvisssssissttssstsevieessstssvetmessssseveesesesveeeeee2
R.C. 2949.22 1(D)(2) oo. cecceccecsescecstecseessecssecsessseeseesiessessessiessissresanetssesetssetsetsessiessessesseeseeseeesenen 20
ivFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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Other Authorities
Evid. R. 201(D)..csccsssssssssssessssssesevevessvevesessessssssssevesssesesststesvrvssvessasasesesserssessesessustiteiesesvesesviseseesseeseT
Garvey, Elliot, “Commentary: A Needle In The Haystack: Finding a Solution to
Ohio’s Lethal Injection Problems,” 38 Cap. U.L. Rev. 609 .......ccccceceetsteeeen 4, 5
Ohio Administrative Code §5120-16...0..0...cccccceceseeseseeseeseereseetesesiereeesissesnsreessnsreessisissnsreensesseensne2O)Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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MEMORANDUM
L Introduction
Plaintiff James O’Neal and Intervening Plaintiff Cleveland Jackson are inmates in the
custody of the Ohio Department of Rehabilitation and Correction (“ODRC and/or “the
Department”) who have been lawfully sentenced to death.' In this action for declaratory and
injunctive relief, they claim that the manner in which the Department promulgated its written
“protocol” for carrying out court-ordered executions violated the Constitution and statutes of
Ohio. [Complaint, Jan. 24, 2018; Intervening Complaint, July 12, 2018]. For the following
reasons, the Department and the State of Ohio now move for summary judgment in Defendants’
favor. First, Plaintiffs have not properly pled a claim under the Declaratory Judgment Act.
Second, the legislature vested the Department with the discretion to determine the procedures for
carrying out court-ordered executions by lethal injection; that is a typical course of action well
within the legislative power. Third, in vesting the Department with this discretion, the legislature
manifestly intended the Department’s protocols to fall outside the formal, statutory rulemaking
requirements. Indeed, the specialized expertise in conducting executions accumulated by the
Department and the corresponding unfettered capacity to improve procedures are essential to
carrying out the statutory mandate. Fourth, Plaintiffs’ delay in bringing suit is unreasonable,
unexplained, unexcused, and highly prejudicial to the interests of the citizens of Ohio. The
equitable doctrine of laches therefore bars the relief Plaintiffs seek.
' Condemned Inmate Raymond Tibbetts was also a named Plaintiff in the original Complaint
He withdrew after then Governor Kasich commuted his capital sentence. [Entry of July 25,
2018]. On May 30, 2018, Inmate Robert Van Hook was permitted to intervene in the case.
[Entry of May 30, 2018]. On July 18, 2018, Van Hook was executed. On July 30, 2018, the
Court granted a motion to withdraw from the case filed by Van Hook’s attorneys. [Entry of July
30, 2018]Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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Accordingly, and as fully explained below, the Court should grant summary judgment in
Defendants’ favor.
IL. Statement of the Facts
A. Since 1994, the Department of Rehabilitation and Correction has issued a
series of revised versions of a written policy directive or “protocol” which
sets forth the procedures the Department utilizes to carry out court-ordered
executions.
Ohio Revised Code (R.C.) §2949.22(A) provides that “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;” and that “[t]he 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 is executed.”
RC. 2949.22(B) provides that “[a] death sentence shall be executed within the walls of
the state correctional institution designated by the director of rehabilitation and correction as the
location for executions, within an enclosure to be prepared for that purpose, under the direction
of the warden of the institution or, in the warden’s absence, a deputy warden....”
Neither R.C. 2949.22 nor any other section of the Revised Code prescribes the specific
drugs to be used nor does any section of the Revised Code set forth the specific procedures to be
used to cause application of a lethal injection of the drugs.
Consistent with R.C. 2949.22’s direction to “cause[]...application...of a lethal injection
of...drugs[,]” for more than twenty years, the Director of the Department of Rehabilitation and
Correction (the “Director”) has issued a series of revised versions of a written policy directive or
“protocol” to implement the Department’s statutory obligation to cause application of lethalFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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injection to condemned inmates, in accordance with the warrant issued by the Ohio Supreme
Court.
For almost ten years, the protocol was identified as policy “Section 1, Number 9.” [See
Exhibit A — Moon Affidavit, {{]4, 6; Exhibits A-1 through A-6 — ODRC Execution Policy
Versions]. That protocol was first issued in March 1994, and subsequently underwent six
revisions, the last of which was issued on July 17, 2003. [/d.]. Beginning on January 8, 2004, the
Department’s execution policy was re-titled and renamed as policy “01-COM-11.” [See Exhibit
A, 994, 6; Exhibits A-7 through A-20 - ODRC Execution Policy Versions]. Including that first
version of policy 01-COM-11, fourteen modified versions of policy 01-COM-11 have been
enacted by ODRC since 2004. [/d.]. The most recent version of policy 01-COM-11 became
effective on October 7, 2016 and remains in use and effect. [See Exhibit A-20]
Review of the Department’s versions of the execution protocol over the last twenty-four
years demonstrates that the Department has added important procedural safeguards to its policy
as Department staff gained increased experience in conducting executions, and in response to
federal litigation challenging the State’s carrying out of executions. The first version of the
protocol, issued in 1994, was five pages long and established general procedures for conducting
executions. [See Exhibit A-1]. That policy did not specify the drugs to be used in conducting an
execution by lethal injection. In contrast, the current version of the protocol, effective since
October 7, 2016, consists of twenty-one pages that set forth the extensive and detailed
procedures now in place for the conduct of executions by lethal injection. [See Exhibit A-20].
Among other things, the current policy identifies the drugs that are authorized for use and details
the procedures for their acquisition, transportation, preparation, administration, and disposalFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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[/d.]. The policy also includes five requirements or “core components,” from which variations
are prohibited. [/d.].
On several occasions over the years, the Department has implemented new procedures to
address specific concerns, and to ensure the consistent application of the safeguards specified in
its written protocol. For example, in June of 2006, the Department amended its protocol after the
execution of Joseph Clark earlier that year. The execution team had difficulty administering the
drugs when one of Clark’s veins collapsed. The amended protocol included safeguards to
address this problem, such as requiring the establishment of two IVs, if possible, and mandatory
observations of IV sites. [See Exhibit A-8, pages 7-8]. See Cooey v. Strickland, 479 F.3d 412,
423-24 (6th Cir. 2007); State v. Rivera, No. 04CR065940, No. 05CR068067 (Ohio Ct. of Comm.
Pl. June 10, 2008). And after the federal district court stayed the scheduled execution of Charles
Lorraine in January of 2012, the Director ordered the implementation of the Incident Command
System (“ICS”) into Ohio's execution process. ICS is a uniform command system widely used
by government and private-sector agencies to manage complex operations. See Jn re Ohio
Execution Protocol Litig., 906 F. Supp.2d 759, 764-71 (S.D. Ohio 2012).
The Department’s issuance of revised versions of the execution protocol over the years
also is the result of changes in circumstances. The prime instance is the need to modify the
protocol due to the unavailability of previously used drugs. In December of 2009, Ohio was the
first state to use a single, fatal dose of a barbiturate. See Garvey, Elliot, “Commentary: A Needle
In The Haystack: Finding a Solution to Ohio’s Lethal Injection Problems,” 38 Cap. U.L. Rev
609, fn. 4; Fears v. Morgan (In re Ohio Execution Protocol), 860 F.3d 881, 885 (6th Cir. 2017)
(finding that Ohio adopted a “one-drug” protocol in 2009 and that from 2010 to 2013, Ohio
executed 20 inmates using single doses of barbiturates.). Between December 8, 2009 andFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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September 25, 2013, Ohio conducted twenty executions using a barbiturate, either thiopental
sodium or pentobarbital. Jd. However, barbiturates became unavailable due to the lobbying of
anti-death penalty advocates. Glossip v. Gross, __ U.S. __, 135 S.Ct. 2726, 2733, 192 L.Ed.2d
761 (2015). Ohio, like other states, found it necessary to revise its execution protocol to allow
for the use of other drugs that the Department could obtain to cause application of lethal
injection, as required by statute. [See Exhibit A-18 — 01-COM-11, effective January 9, 2015].
B. The Department’s execution protocols and the resulting procedural changes
instituted by the Department have been public knowledge for more than a
decade.
As this Court is acutely aware, the Department’s execution procedures have been
vigorously debated and litigated in Ohio’s state and federal courts for more than a decade. See
Cooey, et al. v. Kasich, et al, S.D.Ohio No. 2:04-cv-1156; In re Ohio Execution Protocol
Litigation, $.D.Ohio No. 2:11-cv-1016; Otte v. Strickland, Franklin County Common Pleas Case
No. 08CVH-09-13337; State v. Broom, 146 Ohio St.3d 60, 2016-Ohio-1028; Scott v. Houk, 127
Ohio St.3d 317, 2010-Ohio-5805. In part because of this ongoing litigation, the Department’s
execution protocols have been subject to extensive and intense public scrutiny. For example, in
State v. Rivera, supra, the Department provided copies of its written policies dating back to
1994. Also included were the Department's guidelines for selection of members serving on the
execution team, the results of the Department’s review conducted of the execution of Joseph
Clark, and internal memorandum regarding contingency planning for the 2006 execution of
Darrell Ferguson. The documents were provided in discovery, and were almost immediately
made available for public review by the American Civil Liberties Union. See Garvey, Elliot,
“Commentary: A Needle In The Haystack: Finding a Solution to Ohio’s Lethal Injection
Problems,” 38 Cap. U.L. Rev. 609, page 636, citing Ohio Dep't of Rehab. and Corr., ExecutionFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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Protocols and Procedures, http://www.acluohio.org/issues/DeathPenalty/ExecutionProtocols.asp
(no longer available). In addition, the circumstances by which the previously-used barbiturates
became unavailable, which resulted in changes to the policy to permit the use of different
combination of drugs, have been well documented and are also a matter of public knowledge.
Glossip v. Gross, supra.
In sum, the multiple versions of the Department’s execution protocol, and the resulting
procedural changes instituted by the Department, have been well known and a matter of public
knowledge for more than a decade.
Cc. For nearly a decade, the Director’s discretion to make changes to the
Department’s execution protocol — without utilizing Ohio’s statutory
rulemaking procedures — has been recognized repeatedly in other litigation
involving these same Plaintiffs.
As the undisputed facts described above show, the various changes to the Department’s
execution protocol have been a matter of public knowledge for more than a decade. It is also
undisputed that for nearly ten years, the Director’s discretion to change the execution protocol
from time to time, as necessary, has been recognized repeatedly in other litigation to which
Plaintiffs are also parties. Jn re Ohio Litigation Protocol, 8.D. Ohio Case No. 2:11-cv-1106, is
consolidated federal litigation in which nearly one hundred condemned Ohio prisoners are
challenging the Department’s execution procedures on a litany of federal constitutional grounds.
That litigation includes individual inmate suits which commenced as early as 2004. The record
in that case is replete with instances in which attorneys for the Department notified the Court and
attorneys for Plaintiffs of revisions to the execution protocol. [See Exhibit B — Notices of
Revised Protocols, $.D.Ohio Case No. 2:04-cv-1156, Document Nos. 594, 607, 865, 893, 903;Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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S.D.Ohio Case No. 2:11-cv-1016, Document Nos. 323, 454, 510, 521, 667]. These court filings
are publicly available”
Moreover, and most importantly, throughout the course of the consolidated federal
litigation, it has been recognized repeatedly—and without challenge—that the Director has
exercised, or could exercise, the discretion to change the written requirements of the
Department’s execution protocol without utilizing Ohio’s statutory rulemaking procedures in
RC. 111 or R.C. 119. In fact, during a hearing conducted in March of 2009, then-Director Terry
Collins testified that changes to the Department’s execution protocol are made by the director
after consultation with members of his staff, the warden of the institution in which executions are
conducted, and attorneys from the Office of the Ohio Attorney General
Q All right. So, if someone wanted to make a change to that policy
concerning the execution process, what would they have to do to get you
to agree to that change? Is there (sic) procedures in place?
A. Well, I can only use a hypothetical. I think it's the easiest way to explain
it.
Sure.
If the warden said, Director, I think we should change the policy to say
this or that, or if my chief counsel came to me and said, I think we should
change the policy to this or that, I would bring that group of individuals
together to discuss it, seek their opinions, their inputs, their thoughts, and
make the best reasonable decision I could in reference to that request at
that particular time using that group of individuals to help me understand
the reasons, the need, and the benefit of changing that policy
[See Exhibit C — Excerpt of Transcript of Proceedings March 27, 2009, Testimony of Terry
Collins, Case No. 2:04-cv-1156, Document No. 480, PageID 10345-348]
? Pursuant to Evid.R. 201(B), a court may take judicial notice of a fact that is not subject to
reasonable dispute that is “capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” Evid. R. 201(D) provides that “[a] court shall
take judicial notice if requested by a party and supplied with the necessary information.”Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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In 2011, then-Director Gary Mohr revised the Department’s execution protocol in
conjunction with settlement agreements entered into by the Department with Plaintiffs Johnnie
Baston and Clarence Carter. Those agreements provided for changes in the Department’s
execution protocol intended to address and resolve claims concerning the inmate’s access to their
attorneys and the courts. [See Exhibit A-14, page 13 - 01-COM-11, effective April 11, 2011 and
DRC Policy Impact Analysis]. Counsel representing Baston and Carter essentially agreed to be
bound by the modifications made in the revised execution protocol and the settlement agreement
in responding to like claims presented by the other inmate-plaintiffs they represented. On
February 7, 2011, attorneys for the Department notified the Court and the other plaintiffs of the
modified execution protocol. [See Exhibit B, pages 10-12 — S.D.Ohio Case No. 2:04-cv-1156,
Document No. 893, Notice of Modification of O.D.R.C. Written Directive 01-COM-11,
Effective March 9, 2011; Exhibit D’ - $.D.Ohio Case No. 2:04-cv-1156, Document No. 906-6,
Private Settlement Agreement]. No objections were raised by the Plaintiffs in this case
concerning the Director’s authority to modify the protocol
Both of the Plaintiffs in this case have been parties to the consolidated federal litigation
since November 2011. [See Exhibit E —- $.D.Ohio Case No. 2:10-cv-00027, Document No. 288
and S.D.Ohio Case No. 2:09-cv-00242, Document Nos. 267, 267-1; Exhibit F‘ — $.D.Ohio Case
No. 2:11-cv-1106, Document No. 4]. It is undisputed, therefore, that each of them has been
aware—for_more than seven _years—of the various versions of the Department’s execution
policy. They have also been aware of the undisputed fact that none of those versions of the
policy was ever promulgated as an administrative rule
> Subject to judicial notice pursuant to Evid.R 201, see footnote 2.
4
Id.Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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These undisputed facts confirm that the director’s discretion to make changes to the
Department’s execution protocol has been recognized repeatedly in the consolidated litigation
which remains pending before the U.S. District Court for the Southern District of Ohio. It is also
beyond dispute that during the course of the consolidated federal litigation over the past fifteen
years, it has been repeatedly recognized that the director has exercised, and has the authority to
exercise, the discretion to change the Department’s execution protocol without having to utilize
any of Ohio’s statutory rulemaking procedures. Finally, it is uncontroverted that these Plaintiffs,
Mr. O’Neal and intervenor, Mr. Jackson, as parties to the consolidated federal litigation for more
than the past seven years, have been aware of the Department’s issuance of modified versions of
the execution policy.
Ii. — The Defendants are entitled to summary judgment in their favor.
Civ. R. 56(C) provides that summary judgment shall be rendered only if there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law. State ex rel. Cuyahoga County Hospital v. Ohio Bureau of Workers' Compensation, 27
Ohio St.3d 25, 28, 500 N.E.2d 1370 (1986), citing Inland Refuse Transfer Co. v. Browning-
Ferris Industries of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). Where the facts are
not contested, there is no issue of fact and a settlement of the legal questions will be
determinative of the dispute. /d.; Parrish v. Jones, 138 Ohio St.3d 23, 26, 2013-Ohio-5224, 3
N.E.3d 155 (summary judgment pursuant to Civ.R. 56 is another method available to a party
seeking to avoid a trial and is used when the facts of a case are allegedly undisputed).
In this case, Plaintiffs claim that the manner in which the Department adopted its written
protocol for carrying out court-ordered executions violated the Constitution and statutes of Ohio.
As set forth by Defendants supra, there is no factual dispute as to the manner in which theFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
0E503 - S38
Department has formulated and enacted the written execution protocol at issue here.
Accordingly, disposition of the questions of law presented by Plaintiffs’ Complaint will settle
this dispute. Because the Complaints do not allege that the Department’s execution protocol is a
tule defined by R.C. 119.01, the Plaintiffs have failed to meet the statutory elements to properly
bring a claim for declaratory judgment under R.C. 2721.03. The manner in which the
Department has issued versions of its written execution procedures from 1994 to the present is
consistent with the discretionary authority constitutionally given the Department by the
legislature, and reflects a valid legislative policy to exclude the Department’s execution protocol
from the formal, rulemaking process. Moreover, the equities strongly and decisively preclude
the relief Plaintiffs seek, in view of Plaintiffs’ unreasonable, unexplained, and inexcusable delay
in bringing their claims, and the resulting prejudice to the interests of Ohio’s citizens in the
enforcement of the lawful judgments. Accordingly, for the reasons fully explained below, the
Defendants are entitled to summary judgment in their favor.
A. The Plaintiffs have not properly brought a claim under R.C. 2721.03.
Plaintiffs challenge 01-COM-11, alleging that it is a rule “within the meaning of Ohio
Rev. Code §111.15(A)(1).” [Complaint and Intervening Complaint, pages 8-12.] “Since a
declaratory judgment was unknown to the common law, jurisdiction to render this form of
redress is dependent upon statutory authorization.” Ohio Farmers Ins. Co. v. Heisel, 143 Ohio
St. 519, 521 56 N.E.2d 151 (1944). The statute provides that a declaratory judgment action may
be brought by “any person whose rights, status, or other legal relations are affected by a... . rule
as defined in section 119.01 of the Revised Code... .” R.C. 2721.03. The Declaratory
Judgment Act plainly limits the availability of a declaratory judgment action to those cases
concerning rules defined in section 119.01 and does not provide a mechanism to challenge a rule
10Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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as defined in R.C. 111. Had the Legislature intended for R.C. 111 rules to be challenged under
the Act it would have included such reference. But it did not. As a matter of law, challenges to
tules promulgated under R.C. 111 cannot be brought in a declaratory judgment action. Because
the Complaint does not allege that 01-COM-11 is a rule defined in section 119.01, it is not
subject to R.C. 2721.03. Therefore, as a matter of law, this Court should determine that
Plaintiffs’ claims are barred and foreclosed. Summary judgment on all of Plaintiffs’ claims in
Defendants’ favor is warranted on this basis alone
Second, even if the Plaintiffs had pleaded that 01-COM-11 was a rule as defined in
chapter 119, this action would merit dismissal because ODRC is not an “agency” within the
meaning of that chapter. See R.C. 119.01. Agency is defined three ways in section 119.01: (1)
“agencies enumerated in the statute;” (2) “the functions of any administrative or executive
officer, department, division . . . specifically made subject to sections 119.01 to 119.13 of the
Revised Code;” and (3) “[a]dministrative agencies with the authority to issue, suspend, revoke or
cancel licenses.” Plumbers & Steamfitters Joint Apprenticeship Committee v. Ohio Civil Rights
Com., 66 Ohio St.2d 192, 193, 421 N.E.2d 128 (1981). “The Ohio Department of Rehabilitation
and Correction does not fit in any of these categories.” State v. Brown, 156 Ohio App.3d 120,
2004-Ohio-558, 804 N.E.2d 1021, §11 (10th Dist); and see State v. Glandon, 2nd Dist.
Montgomery No. 20988, 2006-Ohio-39, 15. While “some functions of the Ohio Department of
Rehabilitation and Correction are subject to R.C. Chapter 119,” there is nothing in chapter 119
that makes a decision regarding the execution of a death sentence subject to that chapter. See
Linger y. State Adult Parole Auth., 10th Dist. Franklin No. 97APE04-482, 1997 Ohio App.
LEXIS 4625, *4 (Oct. 14, 1997). Because ODRC is not a Chapter 119 agency, it promulgates
rules pursuant to R.C. 119 only when specifically instructed to do so by statute. See, e.g., R.C.
11Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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5120.657. “When the General Assembly instructs an agency to write rules, they will put in the
authorizing legislation whether the rules will be written under O.R.C. 111.15 or O.R.C. 119.03.”
Procedures Manual, Joint Committee on Agency Rule Review, Jan. 3, 2018°
RC. 2949.22 does not instruct ODRC to promulgate a rule to carry out its obligation to
execute a death sentence. Even if Plaintiffs had referred to chapter 119 in their Complaint, the
Defendants would be entitled to summary judgment because Plaintiffs have not demonstrated
that 01-COM-11 is a rule as defined by that chapter. Because ODRC is not a chapter 119
agency, and because ODRC has not been instructed by statute to promulgate 01-COM-11 as a
chapter 119 rule, the Plaintiffs’ claim is not properly brought as a declaratory judgment action.
The Plaintiffs’ claims are not properly brought under the Declaratory Judgment Act, and
so the Defendants respectfully request that this Court grant summary judgment in the
Defendants’ favor.
B. Consistent with the Constitution of Ohio, the legislature has required the
Department to carry out executions by lethal injection, while vesting the
Department with discretion in choosing the procedures for doing so.
Plaintiffs argue that when the Ohio legislature designated lethal injection as the method
for carrying out death sentences, it unconstitutionally delegated its legislative power to the
Executive Branch. The “gist” of Plaintiffs’ claims appears to be that the legislature cannot
constitutionally require the use of an execution method unless it also specifies the execution
procedures, including identifying the drugs that may be used, and placing limitations on “the
number and types of piercings, needle jabs, or cuts that can be made on the condemned inmate’s
body.” [Complaint and Intervening Complaint, §{] 67-117]. Plaintiffs further suggest that, in
prescribing a particular method of execution, the legislature is constitutionally required to ensure
° Available at http://www jcarr.state.oh.us/assets/gen/jcarr-procedure-manual-1-3-18-641 (subject
to judicial notice pursuant to Evid.R 201, see footnote 2)
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the ability of a condemned inmate to communicate confidentially with an attorney the day before
and during the day of the scheduled execution, and to guarantee that the inmate has access to
courts after an execution has commenced. [/d.]
“A legislative act is presumed constitutional and the presumption is only overcome by
showing beyond a reasonable doubt that the legislative act and constitutional provision are
incompatible.” State v. Klinck, 44 Ohio St.3d 108, 109, 541 N.E.2d 590 (1989), citing State, ex
rel. Brockman, v. Proctor, 35 Ohio St.2d 79, 298 N.E.2d 532 (1973). Delegation of authority to
permit an agency to issue directives for the conduct of its operations is a necessary response to
the increasing complexity of modern government. Jn re Adoption of Uniform Rules and
Regulations Relating to Valuation of Real Property, 169 Ohio St. 445, 455, 160 N.E.2d 275
(1959). In Blue Cross of Northeast Ohio v. Ratchford, 64 Ohio St.2d 256, 416 N.E.2d 614
(1980), the Ohio Supreme Court held that a statute does not unconstitutionally delegate
legislative power if the legislature establishes an intelligible guiding principle and a procedure
whereby the exercise of discretion can be reviewed. The Supreme Court recognized that it is not
always practical to delineate specific standards for the exercise of discretion, due to the need for
flexibility in using discretion. /d. at 259-60. Thus, “[o]rdinarily, the establishment of standards
can be left to the administrative body or officer if it is reasonable for the General Assembly to
defer to the officer's or body's expertise.” /d. at 260
Since R.C. 2949.22 clearly delegates to the Department of Rehabilitation and Correction
the discretion to enact procedures to carry out executions, undoubtedly the statute falls within the
constitutionally conferred legislative power. The Ohio Supreme Court and the federal courts
have recognized that ensuring the humane execution guaranteed by the Eighth Amendment is the
statute’s guiding principle, and that the Department’s written execution protocol effectively
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achieves this objective. In State v. Broom, 146 Ohio St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620,
the Ohio Supreme Court noted that then-recent changes to the Department’s execution protocol
were instituted to address the concerns of the federal district court in the consolidated litigation,
and that “[s]trict compliance with the protocol will ensure that executions are carried out in a
constitutional manner.” /d. at 73. In Cooey v. Strickland, 589 F.3d 210, 215 (6th Cir. 2009), the
United States Court of Appeals for the Sixth Circuit found that the changes effected by the
Department in 2009, which included the use of a single drug, were “designed to render capital
punishment in Ohio more humane.” And, again, it is well known by these Plaintiffs and other
condemned inmates, that the Department’s execution procedures have been subject to intense
review for nearly fifteen years.
Courts in other states have rejected similar challenges to lethal injection protocols,
finding that a legislature can delegate the authority to specify execution procedures to the state’s
department of corrections. California’s Appellate Court held: “The Legislature has made the
‘momentous decision’ to establish the death penalty and has decided the methods by which it
will be carried out. The Legislature could properly delegate to the Department [of Corrections
and Rehabilitation] responsibility to establish procedures for implementing it.” Sims v. Kernan,
30 Cal. App. 5th 105, 112 (2018). Likewise, in State v. Ellis, 281 Neb. 571, 592-93, 799 N.W.2d
267 (2011), the Supreme Court of Nebraska observed
We have said that delegation of legislative power is most commonly indicated
where the relations to be regulated are highly technical or where regulation
requires a course of continuous decision. The subject at issue here clearly fits that
description, which is why similar arguments based on comparable statutes have
been uniformly rejected in other jurisdictions. Those courts have reasoned that by
specifying the purpose of the statute, the punishment to be imposed, and generally
identifying the means, a legislature has declared a policy and fixed a primary
standard, permitting delegation of details that the legislature cannot practically or
efficiently perform itself.
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See also Sims v. State, 754 So.2d 657, 668 (Fla. 2000); State v. Deputy, 644 A.2d 411 (Del
Super. Ct. 1994); State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981); Ex parte Granviel, 561
S.W.2d 503 (Tex. Crim. App. 1978).
In short, consistent with the Constitution of Ohio, the legislature has required the
Department to carry out executions by lethal injection, while vesting the Department with
discretion in choosing the specific manner and procedures for carrying out that statutory
obligation.
Cc. The manner in which the Director exercises the discretion to promulgate the
Department’s execution protocol reflects a valid legislative policy to exclude
the Department’s execution protocol from the formal, rulemaking process.
Plaintiffs also contend that the manner in which the Department promulgated its current
written “protocol” violated R.C. 111.15 and 5120.01. Specifically, Plaintiffs allege that the
Department failed to comply with the procedures set out in R.C. 111.15(B) and (D); that there is
no language in R.C. 5120.01 which exempts the Director or the Department from Ohio’s
administrative rulemaking procedures; and that enacting the execution protocol exceeded the
scope of the Department’s rule making authority under R.C. 5120.01. [Complaint and
Intervening Complaint, {26 — 66]. As explained below, all of these claims are foreclosed as a
matter of law.
First, the claim is not properly brought as a declaratory judgment action because it fails to
meet the necessary requirements of Ohio’s Declaratory Judgment Act to bring an action for
declaratory relief. The statute provides that a declaratory judgment action may be brought by
“any person whose rights, status, or other legal relations are affected by a . . . rule as defined in
section 119.01 of the Revised Code... .” R.C. 2721.03. As previously explained, Plaintiffs do
not allege that 01-COM-11 is a rule as defined in section 119.01, so the claim is not proper on its
15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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face. But even if Plaintiffs had properly pled their claim, it would fail because 01-COM-11 is
not a rule as defined in that section. The Tenth District Court of Appeals has repeatedly held that
guidelines that were not promulgated as rules are not subject to the Declaratory Judgment Act.
Wise v. Ohio Dep't of Rehab. & Corr., 84 Ohio App.3d 11, 14, 616 N.E.2d 251 (10th Dist
1992); Festi v. Ohio Adult Parole Auth., 10th Dist. Franklin No. 04AP-1372, 2005-Ohio-3622,
412; Harris v. Ohio Adult Parole Auth., \0th Dist. Franklin Nos. 05AP-451, 04C VH-5489, 2005-
Ohio-5166, 410.
Even if the Plaintiffs could proceed under the Declaratory Judgment Act, R.C.
111.15(A)(1) provides that a “’Rule’ includes any rule, regulation, bylaw, or standard having a
general and uniform operation adopted by an agency under the authority of the laws governing
the agency; any appendix to a rule; and any internal management rule.” According to the
Legislative Service Commission’s Rule Drafting Manual’, “[a] rule is a formal written statement
of the law that has been established by an administrative agency under the statutes that authorize
the agency to adopt rules. In essence, a rule is a communication of the law established by an
administrative agency.” So, effectively, an administrative rule is a law drafted by an agency and
ultimately confirmed by the legislature.
In order to determine whether ODRC policy 01-COM-11 should have undergone the
administrative rule-making process, this Court must decide the effect of the policy. The pivotal
issue in determining the effect of a document is whether it enlarges the scope of the rule or
statute from which it derives rather than simply interprets it. State ex rel. Saunders v. Indus.
Comm'n, 101 Ohio St.3d 125, 128, 2004-Ohio-339, 802 N.E.2d 650, citing Ohio Nurses Assn.,
6
https://www.|sc.ohio.gov/documents/reference/current/membersonlybriefs/adminruledraftmanual
06_06.pdf (subject to judicial notice pursuant to Evid.R 201, see footnote 2).
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Inc. v. Ohio State Bd. of Nursing Edn. & Nurse Registration , 44 Ohio St.3d 73, 76, 540 N.E.2d
1354 (1989); OPUS II-VI Corp. v. Ohio State Bd. of Pharmacy, 109 Ohio App.3d 102, 113,
671 N.E.2d 1087 (1996). If the document enlarges the scope of the rule or statute from which it
derives, then it must be promulgated as an administrative rule. If the document simply interprets
the rule or statute from which it derives, it is exempt from those rule making requirements. In
addition, like all questions involving the interpretation of statutes, the application of Ohio’s
rulemaking provisions turns on what the legislature intended. Princeton City Sch. Dist., Bd. of
Educ. v. Ohio State Bd. of Educ., 96 Ohio App.3d 558, 567, 645 N.E.2d 773 (Ist Dist. 1994),
Judge Bettman concurring, citing Henry v. Cent. Natl. Bank, 16 Ohio St.2d 16, 242 N.E.2d 342
(1968), paragraph two of the syllabus.
In Princeton City School Dist. Bd. of Edn., supra, the First District Court of Appeals
reasoned that because the provisions at issue “merely control[led] the procedure by which the
duties in the statute and rule must be performed,” they were distinct from rules held to be subject
to the formal rulemaking process. /d. at 564. In OPUS I/I-VII Corp., supra, the Tenth District
Court of Appeals reached a similar conclusion that the procedures in question were not subject to
the formal rulemaking process. The court reasoned that a court “must give due deference to an
administrative interpretation formulated by an agency that has accumulated substantial expertise
in the particular subject area and to which the General Assembly has delegated the responsibility
of implementing the legislative command." OPUS III-VII Corp., 109 Ohio App.3d at 112-13
In Arbogast v. Peterson, the Ninth District Court of Appeals considered whether
Fallsview Psychiatric Hospital’s no-smoking policy was invalid because it was not promulgated
as an administrative rule under R.C. Chapter 119 or Chapter 111. Arbogast, 91 Ohio App. 3d 22,
24, 631 N.E2d 673 (9th Dist. 1993). The court found the policy was exempt from the
17Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758
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promulgation requirements of R.C. 111.15 because the legislature did not intend for every
directive of the managing officer to be subject to promulgation procedures. /d. at 25. See also
Textileather Corp. v. Korleski, \0th Dist. Franklin Nos. O6AP-955, 06AP-956, 2007-Ohio-4129,
fn 10 (“[A] guidance document does not have to be an ‘internal management rule’ in order to
avoid being categorized as a ‘rule.’”). The court determined that the policy fell “within the
“executive charge’ of the managing officer for the institution.” Arbogast at 25.
The responsibility to determine the manner in which an execution by lethal injection will
be carried out falls within the Director’s authority as the executive in charge of the Department.
See R.C. 5120.36. The legislature specifically granted ODRC “all power and authority necessary
for the full and efficient exercise of the executive, administrative, and fiscal supervision over the
state institutions,” R.C. 5120.36, similar to the broad authority it gave the managing officer of
the Fallsview Psychiatric Hospital. See Arbogast at 25, citing R.C. 5119.27; see also R.C
5120.38 (granting the managing officer of each institution “entire executive charge of the
institution”). It is ODRC’s duty to ensure that lawfully-imposed prison sentences and death
sentences are carried out, and so it falls within the executive charge of ODRC to promulgate
policies regarding the execution of sentences. In this instance, it cannot be questioned that the
legislature afforded broad discretion to the Department to carry out executions by lethal
injection, and that the protocol is a quintessential procedural directive which does not expand the
scope of the Director’s already broad authority.
As this Court has previously recognized, R.C. Chapter 5120 gives broad executive
powers to the Director. [Entry of July 3, 2013 at page 5]; see also State ex rel. AFSCME v. Taft,
156 Ohio App.3d 37, 49, 2004-Ohio-493, 804 N.E.2d 88 (3d Dist.). “As R.C. 5120.36 provides,
[the director] is given broad authority and discretion in operating the entire ODRC.” /d. at 51. In
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setting forth the procedures by which the Department performs the duties assigned by R.C.
2949.22, the Director has not expanded the scope of the statutory duty, only interpreted how it is
to be carried out. Here, Ohio’s written execution protocol is “a kind of instruction manual”; as
such, it is not itself a rule. Princeton City Sch. Dist., Bd. of Educ., 96 Ohio App.3d at 563-64.
As explained above, the Department expects strict compliance with its written execution
protocol to ensure a humane and lawful execution. But such expected compliance does not,
alone, mean that the execution protocol is subject to the requirements of formal rulemaking
Promulgating the policy as a formal rule would render the Department unable to make variances
to its procedures to accommodate inmate requests or unforeseen circumstances, for example, by
providing a wedge-shaped cushion at the inmate’s request, or by extending visiting hours to
allow a condemned inmate’s brother to spend time with him. [See Exhibit G’ — Excerpt from
Decision & Order, Jn re Execution Protocol Litigation, 8.D.Ohio Case No. 2:11-cv-1016,
Document No. 1362, PageID 51370]. Variances to a policy can be made much more quickly than
formal rule changes, since rule changes must undergo legislative review and a sta
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S23 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO CIVIL DIVISION JAMES DERRICK O’NEAL, et al., Case No. 18-CV-000758 Plaintiffs, Judge Mark A. Serrott v. THE STATE OF OHIO, et al., Defendants. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Defendants, the State of Ohio and the Ohio Department of Rehabilitation and Correction, move this Court to grant Summary Judgment in their favor pursuant to Ohio Rule of Civil Procedure 56. A memorandum in support is attached. Respectfully submitted, DAVE YOST Ohio Attorney General S/ Zoe A, Saadey ZOE A. SAADEY (0089181) CHARLES L. WILLE (0056444) CHARLES A. SCHNEIDER (0005821) Assistant Attorneys General Criminal Justice Section, Capital Crimes Unit 150 East Gay Street, 16th Floor Columbus, Ohio 43215 T: (614) 728-7055; F: (614) 728-9327 Zoe.Saadey@ohioattorneygeneral.gov Charles. Wille@ohioattorneygeneral.gov Charles.Schneider@ohioattorneygeneral.gov Counsel for Defendants, State of Ohio and Ohio Department of Rehabilitation and CorrectionFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S24 TABLE OF CONTENTS TABLE OF AUTHORITIES ..0.0.0...0..ccccceccecssecseessecseessecsiesreeseesessressretsetietesetieetressesseesessesssesee dd I ntroductiion oo... ccccesceecesseecseecsesseecseesseesetssetsessrecsiessesseseressiseressrstiseretssetiestsecareciessesseeeeee IL. Statement of the Facts... Til. IV. CERTIFICATE OF SERVICE o.0.....0..c0ccceccece cscs ses es eee seeeeseseetseseetiesresosiesiseseisenseetseteetnseetiets A The Defendants are entitled to summary judgment in their favor... cece A. B. Comclusion .........eeccecc cesses ecsecseecsecseessecsesevessesresssecsessesseeseissnesanetsetsetseessessresiesseseeseenss Since 1994, the Department of Rehabilitation and Correction has issued a series of revised versions of a written policy directive or “protocol” which sets forth the procedures the Department utilizes to carry out court-ordered executions The Department’s execution protocols and the resulting procedural changes instituted by the Department have been public knowledge for more than a decade... ..ccecccscsesessesseeesesssecseessecssecsnecseesenssesseeseretaretseeeveteseveteeetee For nearly a decade, the Director’s discretion to make changes to the Department’s execution protocol — without utilizing Ohio’s statutory rulemaking procedures — has been recognized repeatedly in other litigation involving these same Plaintiffs. 00.0.0... 0..cecceceesseesecseesseeeeesseessesssesseeretevetseetsecases The Plaintiffs have not properly brought a claim under R.C. 2721.03.00... Consistent with the Constitution of Ohio, the legislature has required the Department to carry out executions by lethal injection, while vesting the Department with discretion in choosing the procedures for doing $0. ............... The manner in which the Director exercises the discretion to promulgate the Department’s execution protocol reflects a valid legislative policy to exclude the Department’s execution protocol from the formal, rulemaking Under the equitable doctrine of laches, Plaintiffs’ unreasonable and unexplained delay in bringing suit, and the resulting prejudice to the interests of Ohio’s citizens, bars the relief they seek. 10 12 1S 221 24 25Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S25 TABLE OF AUTHORITIES Page(s) Cases Inre Adoption of Uniform Rules and Regulations Relating to Valuation of Real Property, 169 Ohio St. 445, 160 N.E.2d 275 (1959) o.c.cecece eccentric 3) State ex rel. AFSCME v. Taft, 156 Ohio App.3d 37, 2004-Ohio-493, 804 N.E.2d 88 (3d Dist.) oo... cece eee 8 Arbogast v. Peterson, 91 Ohio App. 3d 22, 631 N.E.2d 673 (9th Dist. 1993) 0... LT, 18 Blue Cross of Northeast Ohio v. Ratchford, 64 Ohio St.2d 256, 416 N.E.2d 614 (1980) oo... cece cece tenes nesneeetsesetesseeeeeed 3 Calderon v. Thompson, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) oo... cece eteteset ener Cooey v. Strickland, 479 F.3d 412 (6th Cir, 2007) .cccccccccccscsscsvsvesevsvssssssssssssssssssstsssssvesesssssesessssssssesssssssuieveeeve4 Cooey v. Strickland, 589 F.3d 210 (6th Cir. 2009) oo. c cece ce esses nesneseesneseesesresessestesesnssnsseeseesseseseesreeeeseel > Cooey v. Strickland, S.D.Ohio No. 2:04-cv-1156, 2007 U.S. Dist. LEXIS 67390 (Sep. 12, 2007) ........c.cceee 23 Cosby v. Franklin Cty. Dep't of Job & Family Servs., 10th Dist. Franklin No. O7AP-41, 2007-Ohi0-6641 o.....cccccceesceeesteteestesesteteseeteseseeteesterene 2 State ex rel. Cuyahoga County Hospital vy. Ohio Bureau of Workers’ Compensation, 27 Ohio St.3d 25, 500 N.E.2d 1370 (1986)... ..ccecececccccceeeeesessesessestesesessnesecsnseessesresensressesseneD) Fears v. Morgan (In re Ohio Execution Protocol), 860 F.3d 881 (6th Cir. 2017) oo. c ccc iets 5 Festi v. Ohio Adult Parole Auth., 10th Dist. Franklin No. 04AP-1372, 2005-Ohi0-3622 0......ceceeecceeeeceeeeeeteeseeetesteeeeeene 6 Glossip v. Gross, US. _, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015) ...ccccccsccsssssssecsssreesesessssssssessessssseteeesees5s 6 Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978)...ccccssscsssssvesssssesecvssssessessessesessestessasestesievesvesseeneedFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S26 State ex rel. Gross v. Indus. Comm’n, 115 Ohio St.3d 249, 2007-Ohi0-4916, 874 N.E.2d 1162 .....c.ccccceecceeeeeteeeresestetetteesesieeeee 20 Harris v. Ohio Adult Parole Auth., 10th Dist. Franklin Nos. OSAP-451, 04CVH-5489, 2005-Ohi0-5166 00... 16 Linger v. State Adult Parole Auth., 10th Dist. Franklin No. 97APE04- 482, 1997 Ohio fo App. LEXIS 4625 5 (Oct 14, 1997). ce ceeseieeeeeeseenstsitesnineeviersvenssens - ceteris Inre Ohio Execution Protocol Litig., 906 F. Supp.2d 759 (S.D. Ohio 2012) ....cscssssssssssssssessesssesessvesvesesessesesseessesessitiiseesseveesseend Ohio Farmers Ins. Co. v. Heisel, 143 Ohio St. 519 56 N.E.2d 151 (1944) o.oo. eecseesseeeseeseesseessessretsetsetesetsetsetsenseenee lO OPUS II-VI Corp. v. Ohio State Bd. of Pharmacy, 109 Ohio App.3d 102, 671 N.E.2d 1087 (1996)...cccccscsssssssssssssssssessssvevevevesessssesssseseseserevveveees D7 Parrish v. Jones, 138 Ohio St.3d 23, 2013-Ohi0-5224, 3 NE.3d 155 oo. eecececsess tess essseeseessetevesseessesssensecsseeseeD Plumbers & Steamfitters Joint Apprenticeship Committee v. Ohio Civil Rights Com., 66 Ohio St.2d 192, 421 N.E.2d 128 (1981) oo... eestor eeseseeeseseieresnetereceeeel L Princeton City Sch. Dist., Bd. of Educ. v. Ohio State Bd. of Educ., 96 Ohio App.3d 558, 645 N.E.2d 773 (Ist Dist. 1994) ....ccccccsesssssssssssssssseesevsenl7, 19 State ex rel. Saunders v. Indus. Comm'n, 101 Ohio St.3d 125, 2004-Ohio-339, 802 N.E.2d 650 oo....ceeccecceeeeeeeeeesesetesteeeseene 6 Sims v. Kernan, 30 Cal. App. 5th 105, 112 (2018) ...ccccccscssssssesssssesssesseesessesvesvesessssssersessietsiieesessvsavesseeeee 14 Sims v. State, 754 S0.2d 657 (Fla. 2000).........ccceccecees esses sseesseesseesetsesevetsetsesssecsetssssesssessseesetstsetseenee ld 5 State v. Broom, 146 Ohio St.3d 60, 2016-Ohi0-1028 oo... cece teeter eessesesiesieesiessessretitietretiteeeeeeds 14 State v. Brown, 156 Ohio App.3d 120, 2004-Ohio-558, 804 N.E.2d 1021 (10th Dist)... cee dD State v, Deputy, 644 A.2d 411 (Del. Super, Ct, 1994) ...ccccccccssssssssesserssssssesuevessssrssueensessssisssssssessteenseseeseeed iiiFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S27 State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011) ..ccececeesceseeceseseeceeeereeeetesesneresestesestereeesttettereessetetnereee A State v. Glandon, 2nd Dist. Montgomery No. 20988, 2006-Ohi0-39 .0...0..cceccecceceeseceeteeetesees testers | State v. Klinck, 44 Ohio St.3d 108, 541 N.E.2d 590 (1989) o.oo. cccceeeseeeeseeeeresteteeseeseetnseseeeeee lS State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981)... cece eee eetesesnesteseenesetsnsessesseraeeee lS State v. Rivera, No. 04CR065940, No. 05CR068067 (Ohio Ct. of Comm. Pl. June 10, 2008)... 4 5S State v. Steffen, 70 Ohio St.3d 399, 1994-Ohio-111, 639 N.E.2d 67 ....ccccccceccceceesececeeseess tess essreesetneeeeeneeeee 2S) Textileather Corp. v. Korleski, 10th Dist. Franklin Nos. O6AP-955, O6AP-956, 2007-Ohi0-4129 oo... 18 State ex rel. Wean United, Inc. v. Industrial Comm'n of Ohio, 66 Ohio St.3d 272, 1993-Ohio-27, 611 N.E.2d 828 o.oo. Wise v. Ohio Dep’t of Rehab. & Corr., 84 Ohio App.3d 11, 616 N.E.2d 251 (10th Dist. 1992)... cecccecceeeceesteeees eerste ee 6 Statutes RC. LLL DS(A)D) eccccccccsesessssessseeesessestventsssnsttvssstsnvinssstsssttmmnssstsesttessssssstmessssesessseeseees 16 R.C. 2721.08 oie eecceccceseecsesseessesesesseesseessessiecsssiessessiessssessesssissretsststsetssetseessecseeseeeeeeelO, 11, 15 R.C. 2949.22(A) ooo ccccscseesseesesssssssveessststtvnesssssttvnesststsvissstisstimmnssstsssiussssssstsssissssssseedy 20 RC. 2949.22(B) ooo eccccceessesessssesssessstestvtntsssstsvaesststvisssssissttssstsevieessstssvetmessssseveesesesveeeeee2 R.C. 2949.22 1(D)(2) oo. cecceccecsescecstecseessecssecsessseeseesiessessessiessissresanetssesetssetsetsessiessessesseeseeseeesenen 20 ivFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S28 Other Authorities Evid. R. 201(D)..csccsssssssssssessssssesevevessvevesessessssssssevesssesesststesvrvssvessasasesesserssessesessustiteiesesvesesviseseesseeseT Garvey, Elliot, “Commentary: A Needle In The Haystack: Finding a Solution to Ohio’s Lethal Injection Problems,” 38 Cap. U.L. Rev. 609 .......ccccceceetsteeeen 4, 5 Ohio Administrative Code §5120-16...0..0...cccccceceseeseseeseeseereseetesesiereeesissesnsreessnsreessisissnsreensesseensne2O)Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S29 MEMORANDUM L Introduction Plaintiff James O’Neal and Intervening Plaintiff Cleveland Jackson are inmates in the custody of the Ohio Department of Rehabilitation and Correction (“ODRC and/or “the Department”) who have been lawfully sentenced to death.' In this action for declaratory and injunctive relief, they claim that the manner in which the Department promulgated its written “protocol” for carrying out court-ordered executions violated the Constitution and statutes of Ohio. [Complaint, Jan. 24, 2018; Intervening Complaint, July 12, 2018]. For the following reasons, the Department and the State of Ohio now move for summary judgment in Defendants’ favor. First, Plaintiffs have not properly pled a claim under the Declaratory Judgment Act. Second, the legislature vested the Department with the discretion to determine the procedures for carrying out court-ordered executions by lethal injection; that is a typical course of action well within the legislative power. Third, in vesting the Department with this discretion, the legislature manifestly intended the Department’s protocols to fall outside the formal, statutory rulemaking requirements. Indeed, the specialized expertise in conducting executions accumulated by the Department and the corresponding unfettered capacity to improve procedures are essential to carrying out the statutory mandate. Fourth, Plaintiffs’ delay in bringing suit is unreasonable, unexplained, unexcused, and highly prejudicial to the interests of the citizens of Ohio. The equitable doctrine of laches therefore bars the relief Plaintiffs seek. ' Condemned Inmate Raymond Tibbetts was also a named Plaintiff in the original Complaint He withdrew after then Governor Kasich commuted his capital sentence. [Entry of July 25, 2018]. On May 30, 2018, Inmate Robert Van Hook was permitted to intervene in the case. [Entry of May 30, 2018]. On July 18, 2018, Van Hook was executed. On July 30, 2018, the Court granted a motion to withdraw from the case filed by Van Hook’s attorneys. [Entry of July 30, 2018]Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S30 Accordingly, and as fully explained below, the Court should grant summary judgment in Defendants’ favor. IL. Statement of the Facts A. Since 1994, the Department of Rehabilitation and Correction has issued a series of revised versions of a written policy directive or “protocol” which sets forth the procedures the Department utilizes to carry out court-ordered executions. Ohio Revised Code (R.C.) §2949.22(A) provides that “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;” and that “[t]he 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 is executed.” RC. 2949.22(B) provides that “[a] death sentence shall be executed within the walls of the state correctional institution designated by the director of rehabilitation and correction as the location for executions, within an enclosure to be prepared for that purpose, under the direction of the warden of the institution or, in the warden’s absence, a deputy warden....” Neither R.C. 2949.22 nor any other section of the Revised Code prescribes the specific drugs to be used nor does any section of the Revised Code set forth the specific procedures to be used to cause application of a lethal injection of the drugs. Consistent with R.C. 2949.22’s direction to “cause[]...application...of a lethal injection of...drugs[,]” for more than twenty years, the Director of the Department of Rehabilitation and Correction (the “Director”) has issued a series of revised versions of a written policy directive or “protocol” to implement the Department’s statutory obligation to cause application of lethalFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S31 injection to condemned inmates, in accordance with the warrant issued by the Ohio Supreme Court. For almost ten years, the protocol was identified as policy “Section 1, Number 9.” [See Exhibit A — Moon Affidavit, {{]4, 6; Exhibits A-1 through A-6 — ODRC Execution Policy Versions]. That protocol was first issued in March 1994, and subsequently underwent six revisions, the last of which was issued on July 17, 2003. [/d.]. Beginning on January 8, 2004, the Department’s execution policy was re-titled and renamed as policy “01-COM-11.” [See Exhibit A, 994, 6; Exhibits A-7 through A-20 - ODRC Execution Policy Versions]. Including that first version of policy 01-COM-11, fourteen modified versions of policy 01-COM-11 have been enacted by ODRC since 2004. [/d.]. The most recent version of policy 01-COM-11 became effective on October 7, 2016 and remains in use and effect. [See Exhibit A-20] Review of the Department’s versions of the execution protocol over the last twenty-four years demonstrates that the Department has added important procedural safeguards to its policy as Department staff gained increased experience in conducting executions, and in response to federal litigation challenging the State’s carrying out of executions. The first version of the protocol, issued in 1994, was five pages long and established general procedures for conducting executions. [See Exhibit A-1]. That policy did not specify the drugs to be used in conducting an execution by lethal injection. In contrast, the current version of the protocol, effective since October 7, 2016, consists of twenty-one pages that set forth the extensive and detailed procedures now in place for the conduct of executions by lethal injection. [See Exhibit A-20]. Among other things, the current policy identifies the drugs that are authorized for use and details the procedures for their acquisition, transportation, preparation, administration, and disposalFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S32 [/d.]. The policy also includes five requirements or “core components,” from which variations are prohibited. [/d.]. On several occasions over the years, the Department has implemented new procedures to address specific concerns, and to ensure the consistent application of the safeguards specified in its written protocol. For example, in June of 2006, the Department amended its protocol after the execution of Joseph Clark earlier that year. The execution team had difficulty administering the drugs when one of Clark’s veins collapsed. The amended protocol included safeguards to address this problem, such as requiring the establishment of two IVs, if possible, and mandatory observations of IV sites. [See Exhibit A-8, pages 7-8]. See Cooey v. Strickland, 479 F.3d 412, 423-24 (6th Cir. 2007); State v. Rivera, No. 04CR065940, No. 05CR068067 (Ohio Ct. of Comm. Pl. June 10, 2008). And after the federal district court stayed the scheduled execution of Charles Lorraine in January of 2012, the Director ordered the implementation of the Incident Command System (“ICS”) into Ohio's execution process. ICS is a uniform command system widely used by government and private-sector agencies to manage complex operations. See Jn re Ohio Execution Protocol Litig., 906 F. Supp.2d 759, 764-71 (S.D. Ohio 2012). The Department’s issuance of revised versions of the execution protocol over the years also is the result of changes in circumstances. The prime instance is the need to modify the protocol due to the unavailability of previously used drugs. In December of 2009, Ohio was the first state to use a single, fatal dose of a barbiturate. See Garvey, Elliot, “Commentary: A Needle In The Haystack: Finding a Solution to Ohio’s Lethal Injection Problems,” 38 Cap. U.L. Rev 609, fn. 4; Fears v. Morgan (In re Ohio Execution Protocol), 860 F.3d 881, 885 (6th Cir. 2017) (finding that Ohio adopted a “one-drug” protocol in 2009 and that from 2010 to 2013, Ohio executed 20 inmates using single doses of barbiturates.). Between December 8, 2009 andFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S33 September 25, 2013, Ohio conducted twenty executions using a barbiturate, either thiopental sodium or pentobarbital. Jd. However, barbiturates became unavailable due to the lobbying of anti-death penalty advocates. Glossip v. Gross, __ U.S. __, 135 S.Ct. 2726, 2733, 192 L.Ed.2d 761 (2015). Ohio, like other states, found it necessary to revise its execution protocol to allow for the use of other drugs that the Department could obtain to cause application of lethal injection, as required by statute. [See Exhibit A-18 — 01-COM-11, effective January 9, 2015]. B. The Department’s execution protocols and the resulting procedural changes instituted by the Department have been public knowledge for more than a decade. As this Court is acutely aware, the Department’s execution procedures have been vigorously debated and litigated in Ohio’s state and federal courts for more than a decade. See Cooey, et al. v. Kasich, et al, S.D.Ohio No. 2:04-cv-1156; In re Ohio Execution Protocol Litigation, $.D.Ohio No. 2:11-cv-1016; Otte v. Strickland, Franklin County Common Pleas Case No. 08CVH-09-13337; State v. Broom, 146 Ohio St.3d 60, 2016-Ohio-1028; Scott v. Houk, 127 Ohio St.3d 317, 2010-Ohio-5805. In part because of this ongoing litigation, the Department’s execution protocols have been subject to extensive and intense public scrutiny. For example, in State v. Rivera, supra, the Department provided copies of its written policies dating back to 1994. Also included were the Department's guidelines for selection of members serving on the execution team, the results of the Department’s review conducted of the execution of Joseph Clark, and internal memorandum regarding contingency planning for the 2006 execution of Darrell Ferguson. The documents were provided in discovery, and were almost immediately made available for public review by the American Civil Liberties Union. See Garvey, Elliot, “Commentary: A Needle In The Haystack: Finding a Solution to Ohio’s Lethal Injection Problems,” 38 Cap. U.L. Rev. 609, page 636, citing Ohio Dep't of Rehab. and Corr., ExecutionFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S34 Protocols and Procedures, http://www.acluohio.org/issues/DeathPenalty/ExecutionProtocols.asp (no longer available). In addition, the circumstances by which the previously-used barbiturates became unavailable, which resulted in changes to the policy to permit the use of different combination of drugs, have been well documented and are also a matter of public knowledge. Glossip v. Gross, supra. In sum, the multiple versions of the Department’s execution protocol, and the resulting procedural changes instituted by the Department, have been well known and a matter of public knowledge for more than a decade. Cc. For nearly a decade, the Director’s discretion to make changes to the Department’s execution protocol — without utilizing Ohio’s statutory rulemaking procedures — has been recognized repeatedly in other litigation involving these same Plaintiffs. As the undisputed facts described above show, the various changes to the Department’s execution protocol have been a matter of public knowledge for more than a decade. It is also undisputed that for nearly ten years, the Director’s discretion to change the execution protocol from time to time, as necessary, has been recognized repeatedly in other litigation to which Plaintiffs are also parties. Jn re Ohio Litigation Protocol, 8.D. Ohio Case No. 2:11-cv-1106, is consolidated federal litigation in which nearly one hundred condemned Ohio prisoners are challenging the Department’s execution procedures on a litany of federal constitutional grounds. That litigation includes individual inmate suits which commenced as early as 2004. The record in that case is replete with instances in which attorneys for the Department notified the Court and attorneys for Plaintiffs of revisions to the execution protocol. [See Exhibit B — Notices of Revised Protocols, $.D.Ohio Case No. 2:04-cv-1156, Document Nos. 594, 607, 865, 893, 903;Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S35 S.D.Ohio Case No. 2:11-cv-1016, Document Nos. 323, 454, 510, 521, 667]. These court filings are publicly available” Moreover, and most importantly, throughout the course of the consolidated federal litigation, it has been recognized repeatedly—and without challenge—that the Director has exercised, or could exercise, the discretion to change the written requirements of the Department’s execution protocol without utilizing Ohio’s statutory rulemaking procedures in RC. 111 or R.C. 119. In fact, during a hearing conducted in March of 2009, then-Director Terry Collins testified that changes to the Department’s execution protocol are made by the director after consultation with members of his staff, the warden of the institution in which executions are conducted, and attorneys from the Office of the Ohio Attorney General Q All right. So, if someone wanted to make a change to that policy concerning the execution process, what would they have to do to get you to agree to that change? Is there (sic) procedures in place? A. Well, I can only use a hypothetical. I think it's the easiest way to explain it. Sure. If the warden said, Director, I think we should change the policy to say this or that, or if my chief counsel came to me and said, I think we should change the policy to this or that, I would bring that group of individuals together to discuss it, seek their opinions, their inputs, their thoughts, and make the best reasonable decision I could in reference to that request at that particular time using that group of individuals to help me understand the reasons, the need, and the benefit of changing that policy [See Exhibit C — Excerpt of Transcript of Proceedings March 27, 2009, Testimony of Terry Collins, Case No. 2:04-cv-1156, Document No. 480, PageID 10345-348] ? Pursuant to Evid.R. 201(B), a court may take judicial notice of a fact that is not subject to reasonable dispute that is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Evid. R. 201(D) provides that “[a] court shall take judicial notice if requested by a party and supplied with the necessary information.”Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S36 In 2011, then-Director Gary Mohr revised the Department’s execution protocol in conjunction with settlement agreements entered into by the Department with Plaintiffs Johnnie Baston and Clarence Carter. Those agreements provided for changes in the Department’s execution protocol intended to address and resolve claims concerning the inmate’s access to their attorneys and the courts. [See Exhibit A-14, page 13 - 01-COM-11, effective April 11, 2011 and DRC Policy Impact Analysis]. Counsel representing Baston and Carter essentially agreed to be bound by the modifications made in the revised execution protocol and the settlement agreement in responding to like claims presented by the other inmate-plaintiffs they represented. On February 7, 2011, attorneys for the Department notified the Court and the other plaintiffs of the modified execution protocol. [See Exhibit B, pages 10-12 — S.D.Ohio Case No. 2:04-cv-1156, Document No. 893, Notice of Modification of O.D.R.C. Written Directive 01-COM-11, Effective March 9, 2011; Exhibit D’ - $.D.Ohio Case No. 2:04-cv-1156, Document No. 906-6, Private Settlement Agreement]. No objections were raised by the Plaintiffs in this case concerning the Director’s authority to modify the protocol Both of the Plaintiffs in this case have been parties to the consolidated federal litigation since November 2011. [See Exhibit E —- $.D.Ohio Case No. 2:10-cv-00027, Document No. 288 and S.D.Ohio Case No. 2:09-cv-00242, Document Nos. 267, 267-1; Exhibit F‘ — $.D.Ohio Case No. 2:11-cv-1106, Document No. 4]. It is undisputed, therefore, that each of them has been aware—for_more than seven _years—of the various versions of the Department’s execution policy. They have also been aware of the undisputed fact that none of those versions of the policy was ever promulgated as an administrative rule > Subject to judicial notice pursuant to Evid.R 201, see footnote 2. 4 Id.Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S37 These undisputed facts confirm that the director’s discretion to make changes to the Department’s execution protocol has been recognized repeatedly in the consolidated litigation which remains pending before the U.S. District Court for the Southern District of Ohio. It is also beyond dispute that during the course of the consolidated federal litigation over the past fifteen years, it has been repeatedly recognized that the director has exercised, and has the authority to exercise, the discretion to change the Department’s execution protocol without having to utilize any of Ohio’s statutory rulemaking procedures. Finally, it is uncontroverted that these Plaintiffs, Mr. O’Neal and intervenor, Mr. Jackson, as parties to the consolidated federal litigation for more than the past seven years, have been aware of the Department’s issuance of modified versions of the execution policy. Ii. — The Defendants are entitled to summary judgment in their favor. Civ. R. 56(C) provides that summary judgment shall be rendered only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. State ex rel. Cuyahoga County Hospital v. Ohio Bureau of Workers' Compensation, 27 Ohio St.3d 25, 28, 500 N.E.2d 1370 (1986), citing Inland Refuse Transfer Co. v. Browning- Ferris Industries of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). Where the facts are not contested, there is no issue of fact and a settlement of the legal questions will be determinative of the dispute. /d.; Parrish v. Jones, 138 Ohio St.3d 23, 26, 2013-Ohio-5224, 3 N.E.3d 155 (summary judgment pursuant to Civ.R. 56 is another method available to a party seeking to avoid a trial and is used when the facts of a case are allegedly undisputed). In this case, Plaintiffs claim that the manner in which the Department adopted its written protocol for carrying out court-ordered executions violated the Constitution and statutes of Ohio. As set forth by Defendants supra, there is no factual dispute as to the manner in which theFranklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S38 Department has formulated and enacted the written execution protocol at issue here. Accordingly, disposition of the questions of law presented by Plaintiffs’ Complaint will settle this dispute. Because the Complaints do not allege that the Department’s execution protocol is a tule defined by R.C. 119.01, the Plaintiffs have failed to meet the statutory elements to properly bring a claim for declaratory judgment under R.C. 2721.03. The manner in which the Department has issued versions of its written execution procedures from 1994 to the present is consistent with the discretionary authority constitutionally given the Department by the legislature, and reflects a valid legislative policy to exclude the Department’s execution protocol from the formal, rulemaking process. Moreover, the equities strongly and decisively preclude the relief Plaintiffs seek, in view of Plaintiffs’ unreasonable, unexplained, and inexcusable delay in bringing their claims, and the resulting prejudice to the interests of Ohio’s citizens in the enforcement of the lawful judgments. Accordingly, for the reasons fully explained below, the Defendants are entitled to summary judgment in their favor. A. The Plaintiffs have not properly brought a claim under R.C. 2721.03. Plaintiffs challenge 01-COM-11, alleging that it is a rule “within the meaning of Ohio Rev. Code §111.15(A)(1).” [Complaint and Intervening Complaint, pages 8-12.] “Since a declaratory judgment was unknown to the common law, jurisdiction to render this form of redress is dependent upon statutory authorization.” Ohio Farmers Ins. Co. v. Heisel, 143 Ohio St. 519, 521 56 N.E.2d 151 (1944). The statute provides that a declaratory judgment action may be brought by “any person whose rights, status, or other legal relations are affected by a... . rule as defined in section 119.01 of the Revised Code... .” R.C. 2721.03. The Declaratory Judgment Act plainly limits the availability of a declaratory judgment action to those cases concerning rules defined in section 119.01 and does not provide a mechanism to challenge a rule 10Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S39 as defined in R.C. 111. Had the Legislature intended for R.C. 111 rules to be challenged under the Act it would have included such reference. But it did not. As a matter of law, challenges to tules promulgated under R.C. 111 cannot be brought in a declaratory judgment action. Because the Complaint does not allege that 01-COM-11 is a rule defined in section 119.01, it is not subject to R.C. 2721.03. Therefore, as a matter of law, this Court should determine that Plaintiffs’ claims are barred and foreclosed. Summary judgment on all of Plaintiffs’ claims in Defendants’ favor is warranted on this basis alone Second, even if the Plaintiffs had pleaded that 01-COM-11 was a rule as defined in chapter 119, this action would merit dismissal because ODRC is not an “agency” within the meaning of that chapter. See R.C. 119.01. Agency is defined three ways in section 119.01: (1) “agencies enumerated in the statute;” (2) “the functions of any administrative or executive officer, department, division . . . specifically made subject to sections 119.01 to 119.13 of the Revised Code;” and (3) “[a]dministrative agencies with the authority to issue, suspend, revoke or cancel licenses.” Plumbers & Steamfitters Joint Apprenticeship Committee v. Ohio Civil Rights Com., 66 Ohio St.2d 192, 193, 421 N.E.2d 128 (1981). “The Ohio Department of Rehabilitation and Correction does not fit in any of these categories.” State v. Brown, 156 Ohio App.3d 120, 2004-Ohio-558, 804 N.E.2d 1021, §11 (10th Dist); and see State v. Glandon, 2nd Dist. Montgomery No. 20988, 2006-Ohio-39, 15. While “some functions of the Ohio Department of Rehabilitation and Correction are subject to R.C. Chapter 119,” there is nothing in chapter 119 that makes a decision regarding the execution of a death sentence subject to that chapter. See Linger y. State Adult Parole Auth., 10th Dist. Franklin No. 97APE04-482, 1997 Ohio App. LEXIS 4625, *4 (Oct. 14, 1997). Because ODRC is not a Chapter 119 agency, it promulgates rules pursuant to R.C. 119 only when specifically instructed to do so by statute. See, e.g., R.C. 11Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S40 5120.657. “When the General Assembly instructs an agency to write rules, they will put in the authorizing legislation whether the rules will be written under O.R.C. 111.15 or O.R.C. 119.03.” Procedures Manual, Joint Committee on Agency Rule Review, Jan. 3, 2018° RC. 2949.22 does not instruct ODRC to promulgate a rule to carry out its obligation to execute a death sentence. Even if Plaintiffs had referred to chapter 119 in their Complaint, the Defendants would be entitled to summary judgment because Plaintiffs have not demonstrated that 01-COM-11 is a rule as defined by that chapter. Because ODRC is not a chapter 119 agency, and because ODRC has not been instructed by statute to promulgate 01-COM-11 as a chapter 119 rule, the Plaintiffs’ claim is not properly brought as a declaratory judgment action. The Plaintiffs’ claims are not properly brought under the Declaratory Judgment Act, and so the Defendants respectfully request that this Court grant summary judgment in the Defendants’ favor. B. Consistent with the Constitution of Ohio, the legislature has required the Department to carry out executions by lethal injection, while vesting the Department with discretion in choosing the procedures for doing so. Plaintiffs argue that when the Ohio legislature designated lethal injection as the method for carrying out death sentences, it unconstitutionally delegated its legislative power to the Executive Branch. The “gist” of Plaintiffs’ claims appears to be that the legislature cannot constitutionally require the use of an execution method unless it also specifies the execution procedures, including identifying the drugs that may be used, and placing limitations on “the number and types of piercings, needle jabs, or cuts that can be made on the condemned inmate’s body.” [Complaint and Intervening Complaint, §{] 67-117]. Plaintiffs further suggest that, in prescribing a particular method of execution, the legislature is constitutionally required to ensure ° Available at http://www jcarr.state.oh.us/assets/gen/jcarr-procedure-manual-1-3-18-641 (subject to judicial notice pursuant to Evid.R 201, see footnote 2) 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S41 the ability of a condemned inmate to communicate confidentially with an attorney the day before and during the day of the scheduled execution, and to guarantee that the inmate has access to courts after an execution has commenced. [/d.] “A legislative act is presumed constitutional and the presumption is only overcome by showing beyond a reasonable doubt that the legislative act and constitutional provision are incompatible.” State v. Klinck, 44 Ohio St.3d 108, 109, 541 N.E.2d 590 (1989), citing State, ex rel. Brockman, v. Proctor, 35 Ohio St.2d 79, 298 N.E.2d 532 (1973). Delegation of authority to permit an agency to issue directives for the conduct of its operations is a necessary response to the increasing complexity of modern government. Jn re Adoption of Uniform Rules and Regulations Relating to Valuation of Real Property, 169 Ohio St. 445, 455, 160 N.E.2d 275 (1959). In Blue Cross of Northeast Ohio v. Ratchford, 64 Ohio St.2d 256, 416 N.E.2d 614 (1980), the Ohio Supreme Court held that a statute does not unconstitutionally delegate legislative power if the legislature establishes an intelligible guiding principle and a procedure whereby the exercise of discretion can be reviewed. The Supreme Court recognized that it is not always practical to delineate specific standards for the exercise of discretion, due to the need for flexibility in using discretion. /d. at 259-60. Thus, “[o]rdinarily, the establishment of standards can be left to the administrative body or officer if it is reasonable for the General Assembly to defer to the officer's or body's expertise.” /d. at 260 Since R.C. 2949.22 clearly delegates to the Department of Rehabilitation and Correction the discretion to enact procedures to carry out executions, undoubtedly the statute falls within the constitutionally conferred legislative power. The Ohio Supreme Court and the federal courts have recognized that ensuring the humane execution guaranteed by the Eighth Amendment is the statute’s guiding principle, and that the Department’s written execution protocol effectively 13Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S42 achieves this objective. In State v. Broom, 146 Ohio St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, the Ohio Supreme Court noted that then-recent changes to the Department’s execution protocol were instituted to address the concerns of the federal district court in the consolidated litigation, and that “[s]trict compliance with the protocol will ensure that executions are carried out in a constitutional manner.” /d. at 73. In Cooey v. Strickland, 589 F.3d 210, 215 (6th Cir. 2009), the United States Court of Appeals for the Sixth Circuit found that the changes effected by the Department in 2009, which included the use of a single drug, were “designed to render capital punishment in Ohio more humane.” And, again, it is well known by these Plaintiffs and other condemned inmates, that the Department’s execution procedures have been subject to intense review for nearly fifteen years. Courts in other states have rejected similar challenges to lethal injection protocols, finding that a legislature can delegate the authority to specify execution procedures to the state’s department of corrections. California’s Appellate Court held: “The Legislature has made the ‘momentous decision’ to establish the death penalty and has decided the methods by which it will be carried out. The Legislature could properly delegate to the Department [of Corrections and Rehabilitation] responsibility to establish procedures for implementing it.” Sims v. Kernan, 30 Cal. App. 5th 105, 112 (2018). Likewise, in State v. Ellis, 281 Neb. 571, 592-93, 799 N.W.2d 267 (2011), the Supreme Court of Nebraska observed We have said that delegation of legislative power is most commonly indicated where the relations to be regulated are highly technical or where regulation requires a course of continuous decision. The subject at issue here clearly fits that description, which is why similar arguments based on comparable statutes have been uniformly rejected in other jurisdictions. Those courts have reasoned that by specifying the purpose of the statute, the punishment to be imposed, and generally identifying the means, a legislature has declared a policy and fixed a primary standard, permitting delegation of details that the legislature cannot practically or efficiently perform itself. 14Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S43 See also Sims v. State, 754 So.2d 657, 668 (Fla. 2000); State v. Deputy, 644 A.2d 411 (Del Super. Ct. 1994); State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981); Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978). In short, consistent with the Constitution of Ohio, the legislature has required the Department to carry out executions by lethal injection, while vesting the Department with discretion in choosing the specific manner and procedures for carrying out that statutory obligation. Cc. The manner in which the Director exercises the discretion to promulgate the Department’s execution protocol reflects a valid legislative policy to exclude the Department’s execution protocol from the formal, rulemaking process. Plaintiffs also contend that the manner in which the Department promulgated its current written “protocol” violated R.C. 111.15 and 5120.01. Specifically, Plaintiffs allege that the Department failed to comply with the procedures set out in R.C. 111.15(B) and (D); that there is no language in R.C. 5120.01 which exempts the Director or the Department from Ohio’s administrative rulemaking procedures; and that enacting the execution protocol exceeded the scope of the Department’s rule making authority under R.C. 5120.01. [Complaint and Intervening Complaint, {26 — 66]. As explained below, all of these claims are foreclosed as a matter of law. First, the claim is not properly brought as a declaratory judgment action because it fails to meet the necessary requirements of Ohio’s Declaratory Judgment Act to bring an action for declaratory relief. The statute provides that a declaratory judgment action may be brought by “any person whose rights, status, or other legal relations are affected by a . . . rule as defined in section 119.01 of the Revised Code... .” R.C. 2721.03. As previously explained, Plaintiffs do not allege that 01-COM-11 is a rule as defined in section 119.01, so the claim is not proper on its 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S44 face. But even if Plaintiffs had properly pled their claim, it would fail because 01-COM-11 is not a rule as defined in that section. The Tenth District Court of Appeals has repeatedly held that guidelines that were not promulgated as rules are not subject to the Declaratory Judgment Act. Wise v. Ohio Dep't of Rehab. & Corr., 84 Ohio App.3d 11, 14, 616 N.E.2d 251 (10th Dist 1992); Festi v. Ohio Adult Parole Auth., 10th Dist. Franklin No. 04AP-1372, 2005-Ohio-3622, 412; Harris v. Ohio Adult Parole Auth., \0th Dist. Franklin Nos. 05AP-451, 04C VH-5489, 2005- Ohio-5166, 410. Even if the Plaintiffs could proceed under the Declaratory Judgment Act, R.C. 111.15(A)(1) provides that a “’Rule’ includes any rule, regulation, bylaw, or standard having a general and uniform operation adopted by an agency under the authority of the laws governing the agency; any appendix to a rule; and any internal management rule.” According to the Legislative Service Commission’s Rule Drafting Manual’, “[a] rule is a formal written statement of the law that has been established by an administrative agency under the statutes that authorize the agency to adopt rules. In essence, a rule is a communication of the law established by an administrative agency.” So, effectively, an administrative rule is a law drafted by an agency and ultimately confirmed by the legislature. In order to determine whether ODRC policy 01-COM-11 should have undergone the administrative rule-making process, this Court must decide the effect of the policy. The pivotal issue in determining the effect of a document is whether it enlarges the scope of the rule or statute from which it derives rather than simply interprets it. State ex rel. Saunders v. Indus. Comm'n, 101 Ohio St.3d 125, 128, 2004-Ohio-339, 802 N.E.2d 650, citing Ohio Nurses Assn., 6 https://www.|sc.ohio.gov/documents/reference/current/membersonlybriefs/adminruledraftmanual 06_06.pdf (subject to judicial notice pursuant to Evid.R 201, see footnote 2). 16Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S45 Inc. v. Ohio State Bd. of Nursing Edn. & Nurse Registration , 44 Ohio St.3d 73, 76, 540 N.E.2d 1354 (1989); OPUS II-VI Corp. v. Ohio State Bd. of Pharmacy, 109 Ohio App.3d 102, 113, 671 N.E.2d 1087 (1996). If the document enlarges the scope of the rule or statute from which it derives, then it must be promulgated as an administrative rule. If the document simply interprets the rule or statute from which it derives, it is exempt from those rule making requirements. In addition, like all questions involving the interpretation of statutes, the application of Ohio’s rulemaking provisions turns on what the legislature intended. Princeton City Sch. Dist., Bd. of Educ. v. Ohio State Bd. of Educ., 96 Ohio App.3d 558, 567, 645 N.E.2d 773 (Ist Dist. 1994), Judge Bettman concurring, citing Henry v. Cent. Natl. Bank, 16 Ohio St.2d 16, 242 N.E.2d 342 (1968), paragraph two of the syllabus. In Princeton City School Dist. Bd. of Edn., supra, the First District Court of Appeals reasoned that because the provisions at issue “merely control[led] the procedure by which the duties in the statute and rule must be performed,” they were distinct from rules held to be subject to the formal rulemaking process. /d. at 564. In OPUS I/I-VII Corp., supra, the Tenth District Court of Appeals reached a similar conclusion that the procedures in question were not subject to the formal rulemaking process. The court reasoned that a court “must give due deference to an administrative interpretation formulated by an agency that has accumulated substantial expertise in the particular subject area and to which the General Assembly has delegated the responsibility of implementing the legislative command." OPUS III-VII Corp., 109 Ohio App.3d at 112-13 In Arbogast v. Peterson, the Ninth District Court of Appeals considered whether Fallsview Psychiatric Hospital’s no-smoking policy was invalid because it was not promulgated as an administrative rule under R.C. Chapter 119 or Chapter 111. Arbogast, 91 Ohio App. 3d 22, 24, 631 N.E2d 673 (9th Dist. 1993). The court found the policy was exempt from the 17Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S46 promulgation requirements of R.C. 111.15 because the legislature did not intend for every directive of the managing officer to be subject to promulgation procedures. /d. at 25. See also Textileather Corp. v. Korleski, \0th Dist. Franklin Nos. O6AP-955, 06AP-956, 2007-Ohio-4129, fn 10 (“[A] guidance document does not have to be an ‘internal management rule’ in order to avoid being categorized as a ‘rule.’”). The court determined that the policy fell “within the “executive charge’ of the managing officer for the institution.” Arbogast at 25. The responsibility to determine the manner in which an execution by lethal injection will be carried out falls within the Director’s authority as the executive in charge of the Department. See R.C. 5120.36. The legislature specifically granted ODRC “all power and authority necessary for the full and efficient exercise of the executive, administrative, and fiscal supervision over the state institutions,” R.C. 5120.36, similar to the broad authority it gave the managing officer of the Fallsview Psychiatric Hospital. See Arbogast at 25, citing R.C. 5119.27; see also R.C 5120.38 (granting the managing officer of each institution “entire executive charge of the institution”). It is ODRC’s duty to ensure that lawfully-imposed prison sentences and death sentences are carried out, and so it falls within the executive charge of ODRC to promulgate policies regarding the execution of sentences. In this instance, it cannot be questioned that the legislature afforded broad discretion to the Department to carry out executions by lethal injection, and that the protocol is a quintessential procedural directive which does not expand the scope of the Director’s already broad authority. As this Court has previously recognized, R.C. Chapter 5120 gives broad executive powers to the Director. [Entry of July 3, 2013 at page 5]; see also State ex rel. AFSCME v. Taft, 156 Ohio App.3d 37, 49, 2004-Ohio-493, 804 N.E.2d 88 (3d Dist.). “As R.C. 5120.36 provides, [the director] is given broad authority and discretion in operating the entire ODRC.” /d. at 51. In 18Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jan 25 4:54 PM-18CV000758 0E503 - S47 setting forth the procedures by which the Department performs the duties assigned by R.C. 2949.22, the Director has not expanded the scope of the statutory duty, only interpreted how it is to be carried out. Here, Ohio’s written execution protocol is “a kind of instruction manual”; as such, it is not itself a rule. Princeton City Sch. Dist., Bd. of Educ., 96 Ohio App.3d at 563-64. As explained above, the Department expects strict compliance with its written execution protocol to ensure a humane and lawful execution. But such expected compliance does not, alone, mean that the execution protocol is subject to the requirements of formal rulemaking Promulgating the policy as a formal rule would render the Department unable to make variances to its procedures to accommodate inmate requests or unforeseen circumstances, for example, by providing a wedge-shaped cushion at the inmate’s request, or by extending visiting hours to allow a condemned inmate’s brother to spend time with him. [See Exhibit G’ — Excerpt from Decision & Order, Jn re Execution Protocol Litigation, 8.D.Ohio Case No. 2:11-cv-1016, Document No. 1362, PageID 51370]. Variances to a policy can be made much more quickly than formal rule changes, since rule changes must undergo legislative review and a sta