Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - 068
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
CIVIL DIVISION
JAMES DERRICK O’NEAL, et al., ) Case No.: 2018-CV-00758
PLAINTIFFS,
JUDGE MARK A. SERROTT
vs.
THE STATE OF OHIO,
DEFENDANTS.
PLAINTIFF O’NEAL’S MEMORANDUM IN OPPOSITION TO DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Defendants move for summary judgment (“DMSJ”) arguing that: 1) O’Neal has not
claimed that 01-COM-11should have been adopted under R.C. 119.01 and thus has not pled a
claim properly under the Declaratory Judgment Act, DSMJ p. 1, 10; 2) the Ohio legislature, by
requiring under R.C. 2949.22 that the warden or a designee carry out lethal injection executions,
vested ODRC with the discretion to determine the manner and procedures for carrying out a
court-ordered execution, DMSJ p. 1, 15; 3) in vesting ODRC with discretion, the legislature
manifestly, as is “dispositive[ly]” demonstrated by the Legislature’s silence on 01-COM-11,
intended ODRC’s execution protocols to fall outside Ohio’s statutory rulemaking requirements,
DMSJ p. 1, 20; and 4) O’Neal delayed in bringing suit by not challenging earlier and since-
rescinded execution protocols and thus the doctrine of laches bars this action. DMSJ p. 1, 22.
Defendants’ claims are conclusory. They are not supported by Rule 56(C) evidence.
Defendants’ Motion for Summary Judgment on each claim must be denied
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - 06
L PLAINTIFF O’NEAL HAS PROPERLY PLED HIS CLAIMS UNDER THE
DECLARATORY JUDGMENT ACT.
A. O’Neal’s claims are subject to declaratory judgment.
Defendants claim they are entitled to summary judgment arguing that the question of
whether 01-COM-11' was validly enacted under R.C. 111.15 and the Ohio Constitution cannot
be determined in a declaratory judgment action because R.C. 2721.03 provides in pertinent part
Subject to division (B) of section 2721.02 of the Revised Code, .. . any person
whose rights, status, or other legal relations are affected by a constitutional
provision, statute, rule as defined in section 119.01 of the Revised Code,
. may have determined any question of construction or validity arising under
the instrument, constitutional provision, statute, rule, and obtain a
declaration of rights, status, or other legal relations under it.
(emphasis added). Defendants claim that the provision allowing this court to determine “rights,
status, or other legal relations [that] are affected by a tule as defined in section 119.01”
precludes determining whether Defendants are required and failed to comply with R.C. 111.15 -
a statute - and violated Article II of the Ohio Constitution - a constitutional provision — and other
statutory and constitutional requirements - in adopting 01-COM-11. DMSJ, p. 10. It is true as a
matter of law that a rule subject to R.C. 111.15 and adopted without meeting the statutory filing
requirements is invalid. R.C. 111.15. See State ex rel. Ryan v. State Teachers Retirement Sys., 71
Ohio St.3d 362, 366, 643 N.E.2d 1122, 1126-27 (1994), (rule invalid because it was not filed as
required by R.C. 111.15), State ex rel. Bd. of Edn. of N. Canton Ex. Village Sch. Dist. v. Holt,
174 Ohio St. 55, 57, 186 N.E.2d 862, 863 (1962) (same).
Moreover, there is no bar to direct review of 01-COM-11. The Ohio Supreme Court held
that “the enumeration in R.C. 2721.03 does not limit or restrict the exercise of the general
powers conferred in R.C. 2721.02 in any proceeding where declaratory relief is sought, in which
‘ All references to 01-COM-11 are to the protocol adopted on October 7, 2016 unless otherwise specified.
2
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - O70
a judgment or decree will terminate the controversy or remove the uncertainty.” Carroll v.
Washington Township Zoning Comm., 56 Ohio St.2d 164, 168 (1978) (emphasis added). R.C
2721.02(A) provides that “courts of record may declare rights, status, and other legal relations
whether or not further relief is or could be claimed. No action or proceeding is open to objection
on the ground that a declaratory judgment or decree is prayed for under this chapter.” And R.C.
2721.06 states that the provisions of 2721.03 do not limit the broad declaratory powers identified
in R.C. 2721.02. Ohio's Declaratory Judgment Act is “remedial and shall be liberally construed
and administered.” R.C. 2721.13.
American Life & Accl. Ins. Co. v. Jones, 152 Ohio St. 287 (1949), further establishes that
declaratory judgment can be used to determine whether 01-COM-11 was enacted in compliance
with the requirements of R.C. 111.15. There, the administrator of the bureau of unemployment
compensation determined that insurance agents were employees for whom unemployment
compensation contributions were to be made by the plaintiff American Life. In 1940, American
Life filed an administrative appeal and lost its argument that insurance agents were exempt from
the definition of employees. /d. at 295, 296. American Life then brought a declaratory judgment
action under Ohio Gen. Code Sec. 12102-2 seeking to void the administrative construction of the
definition of “employment” and to recoup the payments it made from 1941 to 1946. At that time,
the Declaratory Judgment Act, Ohio Gen. Code Sec. 12102-2, made no provision for the review
of any form of administrative law or administrative decision. The Ohio Supreme Court found no
bar to the declaratory action because American Life’s claim was “within the spirit of the
Uniform Declaratory Judgments Act.” /d. at 296 and syl. 2. See also Burger Brewing Co. v.
Dept. of Liquor Control, 34 Ohio St.2d 93, syl. 1 (1973).
The Ohio Supreme Court also found that, though an administrative action was at issue,
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - O71
American Life sought to vindicate its rights under the statute that gave administrative authority
to the bureau of unemployment compensation. /d. at 294, 298. The court found no bar to
deciding whether there had been compliance with the statute that gave rise to the administrative
action. Similarly, the Franklin County Court of Appeals found declaratory judgment appropriate
to determine whether a “measure being implemented by the agency . . . is, or is not, a rule” that
requires “promulgation through the [statutory] rule making process”. W.C. Cupe Community
School v. Zelman, 2008-Ohio-2800, § 18 (10"" Dist. 2008). See also Victory Academy v. Zelman,
2008-Ohio-3561, f10-13 (10" Dist. 2008), Farley Trubee v. Ohio Expo. Commission, No
96APD0S5-705, 97-LW-1217 (10" Dist. 1997), Buckeye Quality Care Centers, Inc. v. Fletcher,
48 Ohio App.3d 150, 548 N.E.2d 973 (10" Dist. 1988), Ohio Assn. of County Bds. of Mental
Retardation & Developmental Disabilities v. Pub. Emp. Retirement Sys, 61 Ohio Misc. 2d 836,
842, 585 N.E.2d 597 (1990). And this Court found, in denying Defendants’ Motion to Dismiss
an agency regulation or policy that enlarges the scope of administrative rule
or statute from which it derives, that is substantive in nature, and that has a
preclusive effect and is not merely advisory can be a “rule” subject to a
declaratory judgment action. 01-COM-11 is not merely advisory but
expresses strict procedures to be followed in carrying out an execution...As
in [W.C. Cupe v.] Zelman, the complaint sufficiently alleges the
existence of a rule for which a declaratory judgment may be appropriate.
(Decision and Entry Denying Motion to Dismiss at p. 11-12) (emphasis added). Thus, deciding
whether 01-COM-11 is a rule subject to R.C. 111.15, whether 111.15 has been violated by
Defendants’ admitted non-compliance with the statute, and whether there have been violations of
Article II of the Ohio Constitution, the separation of powers, and other statutory and
constitutional provisions, is well within the scope of Ohio’s Declaratory Judgment Act.
O’Neal notes that, while Defendants base their first claim on their view that declaratory
Judgment applies only to rules adopted under R.C. Ch. 119 and ODRC is not an agency
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - O7
identified, nor 01-COM-11 a rule defined, in Ch. 119, they make the same argument later in their
Motion. DMSJ, p.15-16. ODRC is an agency under R.C. 111.15(A)(2) definition and 01-COM-
11 arule under R.C. 111.15(A)(1). The determination of whether 01-COM-11 violates R.C
111.15, Article II of the Ohio Constitution, and the separation of powers falls squarely within the
parameters of R.C. 2721.03 which includes adjudication of issues arising under statutory and
constitutional provisions. O’Neal’s response to this argument regarding Defendant’s first claim is
also intended to respond to it when it is repeated elsewhere in their Motion.
B. Defendants failed to meet the Summary Judgment standard with their first claim.
Defendants do not provide evidence showing that they are exempt from the rulemaking
requirements of R.C. 111.15. Their support for the claim that “As a matter of law, challenges to
rules promulgated under R.C. 111 cannot be brought in a declaratory judgment action”, is that
the Declaratory Judgment Act does not make specific reference to R.C. 111.15 (addressed
above), and the assertion that when the General Assembly “instructs” an agency to adopt rules,
it identifies which rulemaking statute to follow. (DMSJ p. 11). Defendants misapprehend the
scope of R.C. 111.15: it applies to rules “adopted” regardless of whether a specific instruction to
adopt a rule was given in any particular statute. R.C. 111.15(A)(1) says: “‘Rule’ includes any
tule, regulation, bylaw, or standard having a general and uniform operation adopted by an
agency under the authority of the laws governing the agency.” (emphasis added)
In addition to misapprehending the law, defendants have failed to present facts and
evidence that would permit a ruling in their favor. Defendants do not deny that 01-COM-11 isa
tule under R.C. 111.15 or that ODRC is an agency subject to R.C. 111.15. And they have
provided no evidence to support such a claim. Every reference in support of their claim is based
on 01-COM-11 not being a rule, and ODRC not being an agency, under R.C. 119. DMSJ pp. 10-
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - O7
12. “When seeking summary judgment on the ground that the nonmoving party cannot prove its
case, the moving party bears the initial burden of informing the trial court of the basis for the
motion and identifying those portions of the record that demonstrate the absence of a genuine
issue of material fact on an essential element of the nonmoving party's claims”. Dresher v. Burt
(1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. The moving party does not discharge this initial
burden under Civ. R. 56 by simply making conclusory allegations. /d. Rather, the moving party
must affirmatively demonstrate by affidavit or other evidence that the nonmoving party has no
evidence to support its claims. /d. Defendants have failed to support their first claim with
applicable law and Rule 56(C) evidence.
IL. Defendants seek summary judgment on their claim that because they are to carry
out executions under R.C. 2949.22, they have been delegated the power to choose
“the specific manner and procedures” for doing so.
Defendants argue that R.C. 2949.22 is presumed to be constitutional, courts have
recognized that “the statute's guiding principle” is to comport with the Eighth Amendment, and
therefore, that they have been delegated the authority to adopt 01-COM-11. DMSJ, p. 13.
Defendants claim that because they are to carry out “lethal injection” executions under R.C
2949.22, they have been delegated the authority to choose “the specific manner and procedures
for carrying out” executions. DMSJ, p.15. R.C. 2949.22 in fact places the duty to carry out
executions on the warden or an ODRC designee. However, despite the obligation to give every
word in the statute its clear meaning, R.C. 1.47(B), Defendants, without explanation, ignore
those words and claim the duty to execute, and the accompanying rulemaking power they
perceive, to be theirs. Defendants have not met the summary judgment standard. They offer no
evidence of the delegation of authority they claim. Moreover, the facts show that Defendants
have not merely implemented the requirements of R.C. 2949.22 but have changed them thus
usurping legislative power.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - O74
A. There Was No Delegation of the Power Defendants Claim: The Power that was Used
Was Usurped from the Ohio General Assembly by Defendants.
Ohio Rev. Code 2949.22(A) requires a quick and painless death caused by “a lethal
injection of a drug or combination of drugs.” Assuming arguendo that the Ohio General
Assembly intended to delegate any rulemaking authority to Defendants regarding carrying out
executions under R.C. 2949.22, that delegation could only be to carry out executions by means
of “lethal injection” — the method of execution set out in the statute. Defendants have changed
Ohio’s method of execution to “IV Injection.” 01-COM-11 VI.G.7 and VI. H.
It is true as a matter of law that a rule adopted pursuant to an unconstitutional usurpation
of legislative power is invalid. Williams v. Spitzer Autoworld Canton, L.L.C., 122 Ohio St. 3d
546, 913 N.E.2d 410 (2009), D.A.B.E., Inc. v. Toledo-Lucas County Bd. Of Health, 96 Ohio
St.3d 250, 260, 773 N.E.2d 536, 546 (2002) citing Chambers v. St. Mary's School, 82 Ohio St.3d
563, 567, 697 N.E.2d 198 (1998)
1. Only the legislature can define the manner of execution.
The Ohio General Assembly has the exclusive power “to define and classify and
prescribe punishment for felonies committed within the state.” State v. O'Mara, 105 Ohio St. 94
syl. 1 (1922). The “General Assembly has the plenary power to prescribe crimes and fix
penalties.” State v. Morris, 55 Ohio St.2d 101, 112 (1978). Only the General Assembly may
“define” a penalty to be imposed by the State. “[T]he authority to define and propose penalties is
limited to the General Assembly.” State Ex Rel. Sensible Norwood, et al., v. Hamilton County
Bad. of Elections, 148 Ohio St.3d 176 (2016). The specific manner of execution chosen by the
Ohio General Assembly is the injection of drugs that will cause a quick and painless death.
Contrary to Defendants’ claim, they do not have and cannot be given the legislative power to
choose “the specific manner and procedures for carrying out” executions. DMSJ, p.15.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - O7
Defendants, by changing Ohio’s method of execution from “injection” to “IV injection,”
have usurped the legislative power. The IV execution method they adopted requires establishing
intravenous access to inmate’s veins and entails a series of injections into an IV tube to inflict
death in stages. Establishing the IV lines has been known to take more than two hours. State v.
Broom, 146 Ohio St.3d 60, 61-63 (2016). There are no limits on the type of cuttings/piercings/
woundings that may be used to establish IV lines. 01-COM-11, G.7.c., Mohr Dec. J. Depo., p. 53,
p. 55. There is no limit on the amount of time or number or wounds that may be inflicted in order
to attempt to establish IV lines. 01-COM-11, G.7.c., Mohr Dec. J. Depo., p. 51, lines 7-13. There
is no limit on the areas of the inmate’s body that may used for establishing IV lines. 01-COM-11,
G.7.b.ii, H.2, Mohr Dec. J. Depo., p. 51. This is a process that is not contemplated in the
language of R.C. 2949.02. The IV insertion process has not materially changed since the time of
Broom’s attempted execution. See Ex. A to O’Neal’s MSJ, ODRC 01-COM-11 (May 14, 2009).
The intravenous administration of drugs is not the “injection” required under 2949.22 and
Defendants’ choice of it usurped the legislative power to fix penalties
2. The common meaning of injection.
The common and ordinary meaning of “inject” at the time 2949.22 was enacted was: “1
to force or drive (a liquid) into some passage, cavity, or chamber; esp., to introduce or force (a
liquid) into some part of the body by means of a syringe or hypodermic needle, etc.” The word
“{njection” meant “1 an act or instance of injecting.” WEBSTER’S NEW WORLD COLLEGE
DICTIONARY, 4th Ed., World Wide Books, Inc. (2001) p. 735. Director Mohr testified that his
understanding of the word injection is consistent with this definition. Mohr Dec. J. Dep., p. 45,
lines 5-16. Under the rules of statutory construction this common meaning is the statutory
meaning. State ex rel. Singer v. Fairland Loc. Sch. Dist. Bd. of Educ., 151 Ohio St.3d 594, 597,
91 N.E.3d 732 (2017). Thus, a lethal injection as contemplated under R.C. 2949.22 is a direct
8
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - O7
injection into the inmate’s body of a lethal drug or drugs that will cause a quick and painless
death. Director Mohr also testified that such an injection had been authorized in Ohio in the past.
Mohr Dec. J. Depo., p. 48, lines 19-25.
3. The Ohio General Assembly knows the difference between injection and intravenous
Moreover, there is no chance that the General Assembly intended the word “injection” to
mean “IV”. When the General Assembly addresses intravenous drug administration, it specifies
the IV character explicitly. The use of intravenous access is closely regulated in Ohio. For
example, R.C. 4723.67, “Administration of medications by aides”, says in pertinent part:
(D) A medication aide shall not administer prescription medications by any
of the following methods:
(1) Injection;
(2) Intravenous therapy procedures;
(3) Splitting pills for purposes of changing the dose being given.
R.C. 4730.203, “Delegation of administration of drug”, provides in pertinent part:
(C) A physician assistant may delegate administration of a drug only if all
of the following conditions are met:
(4) The drug will not be administered intravenously.
Extensive training is required under Ohio law for intravenous drug administration. See for
example R.C. 4723.19 “Courses of study in the safe performance of intravenous therapy”, R.C.
4723.18(A)(3)(a) “Administration of adult intravenous therapy,” R.C. 4721.181 “Intravenous
therapy procedures.” The difference between an injection and an IV procedure is well known to
the Legislature and has been addressed in statutes for many years. See Ohio Nurses Assn., Inc. v.
Ohio State Bd. of Nursing Edn. & Nurse Registration, 44 Ohio St.3d 73, 76, 540 N.E.2d 1354,
1356 (1989) and the 1980’s statutes discussed therein. When the Ohio General Assembly intends
to address the IV administration of drugs, it says so.
Again, assuming arguendo that the Ohio General Assembly intended to delegate any
rulemaking authority to Defendants regarding carrying out executions under R.C. 2949.22, that
9
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - O77
delegation could only be to carry out executions that would result in a “quick and painless
death.” 01-COM-11 provides instead for death in stages. Three drugs are used in sequence the
first, midazolam, to render the prisoner unconscious, Mohr 12/22/2016 Depo., p. 105, lines 5-7,
followed by a paralytic to paralyze the prisoner id. at p. 100, line 5 — p.101, line 18, and the third,
potassium chloride to stop the prisoner’s heart. 01-COM-11. Mohr testified that when ODRC 01-
COM-11 was adopted it was expected to take 15 to 20 minutes from the first “IV injection” to
death. Mohr Depo. 12/22/2016, p. 118, line 20 - p. 119, line 1. This 15 to 20-minute death is not
the quick death described in R.C. 2949.22(A). Nor does the death in stages adopted under 01-
COM-11 comply with or implement the 2949.22(A) painless death requirement. Mohr Dec. J.
Depo., p. 48, Theodore Depo, p. 7, and see Ex. B to O’Neal’s Mot. S.J. in this court Jn Re: Ohio
Execution Protocol Litigation, Case No. 2:11-CV-1016 (S.D. Ohio, January 14, 2019)
4, Any delegation of power could only have been to implement the statutory language.
Defendants assert that the state and federal courts “have recognized that ensuring the
humane execution guaranteed by the Eighth Amendment is the statute’s [2949.22] guiding
principle” and that 01-COM-11 meets this guiding principle. DMSJ p. 13. They cite Covey v.
Strickland, 599 F.3d 210, 215 (6 Cir. 2009) in support. The protocol at issue in Cooey
eliminated “Ohio’s use of a three-drug protocol, which allegedly created a risk that the individual
would not be properly anesthetized before the third, painful injection induced cardiac arrest” and
established an “intramuscular injection as a back-up procedure.” Cooey at 215. Neither of these
protections is available under 01-COM-11 now. And the Sixth Circuit made no finding about the
guiding principles of the Ohio law. They next cite State v. Broom, 146 Ohio St. 3d 60 (2016) for
the same proposition. Again, Broom court did not address any “guiding principle” under 2949.22
and, as with Cooey, the protocol addressed is no longer in effect. Defendants have admitted
10
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - O78
repeatedly that they have received no legislative guidance regarding 01-COM-11. The cases they
cite neither provide guidance nor substitute for the legislature’s public policy determination that
Ohio uses a lethal injection that causes a quick and painless death
Defendants cite State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011) to support their
claim that the Ohio legislature “vested” in them the authority to adopt 01-COM-11. E//is does
nothing for Defendants’ position. The Nebraska statute, R.R.S. §83-965(2) specifically delegated
the rulemaking authority to the Director of Correctional Services and the Nebraska death penalty
statute, R.R.S. §83-964, specifically provided for “intravenous injection.” Defendants argue that
Ellis demonstrates that delegating authority is appropriate in matters that are “highly technical”
or require “a course of continuous decision”. DMSJ., p. 14. But the Ohio Legislature did not
choose the “highly technical” intravenous method that Nebraska did. The only highly technical
aspects of Ohio’s execution procedure arise from 01-COM-11 and Defendants’ decision to use
“TV injection” and a series of drugs known to cause pain to induce death in stages instead of
implementing the lethal injection and quick death required by R.C. 2949.22.
The history of Ohio execution methods shows that the General Assembly has always
chosen simple and direct methods that required a quick action to cause death. See Hanging —
Revised Statutes of Ohio, Title II, Ch. 7, Sec. 7338 (1880) “The mode of inflicting the
punishment of death shall be by hanging by the neck until the person is dead;” Electrocution “A
death sentence must be executed by causing a current of electricity, of sufficient intensity to
cause death, to pass through the body of the convict. The application of such current must be
continued until such convict is dead”. Page’s Ohio Gen. Code, Part Fourth, Ch. 35, §13456-2
(1938). These past execution methods required only that the condemned prisoner be placed in the
execution device without the need to injure him/her before the execution began. The same is true
11
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - O7
of an “injection” under R.C. 2949.22(A) — the area of the inmate’s body where the injection is to
be given needs to be accessible and the injection given. The statute actually places the duty to
carry out executions on the warden or an ODRC designee. /d. This is further evidence that the
legislative intent was to use a simple execution method. Defendants have created the complexity
they argue warrants a delegation of power that was neither made nor required by the statute.
Defendants also cite Sims v. Kernan, 30 Cal. App. 5th 105 (2018) noting that once the
California Legislature decided the “method by which [the death penalty] will be carried out” i
was appropriate to allow the California Department of Correction to adopt procedures to
implement the statute. Cal. Penal Code §3604, identifies “intravenous injection” as the execution
method and specifically delegates rule making authority in its statutory language. Equally
important is the fact that the California statute does not require the use of a drug or combination
of drugs that will result in a quick and painless death. The California Dept. of Corrections used
the “intravenous injection” method chosen by the California Legislature. Under those
circumstances the California Appellate Court found the delegation appropriate. The case is
inapposite. Defendants have not implemented the “lethal injection” required by Ohio law but
instead adopted a new execution method of “IV Injection.” Defendants have not implemented the
“quick and painless death” required by R.C. 2949.22 but instead adopted a 15 to 20-minute,
Mohr Depo. 12/22/2016, p. 118, process of death in stages using drugs they know to be painful
Til. Defendants seek summary judgment on their claim that, the Ohio legislature, by
enacting R.C. 2949.22, adopted “a valid legislative policy to exclude the
Department’s execution protocol from the formal, rulemaking process” and allowed
it to choose “the specific manner and procedures” for carrying out executions.
Defendants argue that because R.C. 2949.22(A) does not provide any “substantive
guidance or requirements with respect to the way in which ODRC is to ‘ensure that the death
sentence is executed’””, the Ohio General Assembly exempted them from Ohio’s statutory
12
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - 080
rulemaking process and allows them to choose Ohio’ manner” of execution. DMSJ p. 19-20.
Even if the legislature intended to cede the power to define Ohio’s execution method, the
delegation was unconstitutional. “[T]he authority to define and propose penalties is limited to the
General Assembly.” State Ex Rel. Sensible Norwood, et al., v. Hamilton County Bd. of Elections,
148 Ohio St.3d 176 (2016). It is true as a matter oflaw that a rule adopted pursuant to an
unconstitutional delegation of power is invalid. Blue Cross of Northeast Ohio v. Ratchford, 64
Ohio St. 2d 256, 259, 416 N.E.2d 614, 617 (1980), Matz v. JL. Curtis Cartage Co., 132 Ohio St
271, syl. 6, 7 N.E.2d 220 (1937). The delegation of rulemaking power without legislative
guidance is unconstitutional. B/ue Cross, at syl
Defendants argue, though they claim ODRC “expects strict compliance” with 01-COM-
11, that following formal rule making requirements would impede their ability to “make
variances” to accommodate inmate requests such as providing a wedge-shaped cushion or
extending an inmate’s family visit. /d. They argue that 01-COM-11 is similar to “guidelines”
implementing a properly adopted administrative rule and statute for collecting school data that
were found exempt from rulemaking requirements in Princeton City School Dist. Bd. of Edn., v.
Ohio St. Bd. of Edn., 96 Ohio App.3d 558, 645 N.E.2d 773 (1 Dist. 1994). DMSJ, p.19.
Defendants find the adoption of 01-COM-11 comparable and characterize it as “a kind of
instruction manual” rather than a rule. /d. Defendants’ adoption of 01-COM-11 is not
comparable to the situation in Princeton. There the statute, R.C. 3301.0714, “gave the state board
explicit instructions” and “great specificity” on the rulemaking procedure and content, the rule
was adopted in accordance with the statute, the guidelines amplified the rule, the statute required
the adoption of the guidelines and expressly exempted them from statutory rulemaking
procedures, and the “guidelines” adopted explained the properly adopted rule and were limited to
13
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - O81
details about the collection of data. Princeton, 96 Ohio App.3d at 563-63, 645 N.E.2d at 776-77
Defendants also compare the adoption of 01-COM-11 to the situation in Arbogast v.
Peterson, 91 Ohio App.3d 22, 631 N.E.2d 673 (9" Dist. 1993). There, the superintendent of a
state psychiatric facility was permitted to adopt a no-smoking rule for the institution, over which
he had executive charge, without using Ohio’s statutory rulemaking process. There is no valid
comparison between an institutional no-smoking policy and adoption of the execution method
and procedures for the entire State of Ohio. The case simply has no application in this matter.
1. The Ohio General Assembly’s “silence and inaction” is not evidence of a legislative
delegation of power that is exempt from Ohio’s statutory, rulemaking process.
Defendants next argue that the Legislature has given “dispositive” imprimatur to their
adoption of 01-COM-11 by its “silence and inaction.” DMSJ, p. 20. Defendants proceed on an
unfounded premise. Defendants have not submitted 01-COM-11 to the rulemaking procedure
that would bring it to the General Assembly’s attention. R.C. 106.042(B) provides that
The failure of the general assembly to adopt a concurrent resolution
invalidating a proposed or existing rule is not a ratification of the lawfulness
or reasonableness of the proposed or existing rule or of the validity of the
procedure by which the rule was proposed or adopted.
There is no basis for assuming legislative approval from silence. Defendants rely on dicta in
State ex rel. Gross v. Indus. Comm’n, 115 Ohio St.3d 249, 261 (2007), wherein Justice
O’Conner, in dissent, “presumed” that the legislature “knew of our [Ohio Supreme Court]
decisions.” DMSJ p. 20. There is no reasonable basis for claiming that the legislature is aware of
agency actions that were never submitted to the legislative review process of R.C. 111.15
Defendants next claim that they were “filling a gap” when they adopted 01-COM-11
because the “legislature did not provide any instruction regarding how to define or carry out a
lethal injection.” Motion, p. 21. In fact, the legislature gave very clear instructions: “injection”
and “quick and painless.” There was no gap to fill. Using a simple injection and a drug or drugs
14
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - 08
that would cause a quick and painless death was all that was required. If, as Defendants contend,
it became impossible for them to obtain such drugs, the answer was to take the problem to the
Ohio General Assembly; not to legislate on their own.
2. 01-COM-11 is a rule subject to R.C. 111.15
The Ohio Supreme Court has held “that what an agency labels a document is not
conclusive” as to whether the promulgation is a rule. State ex rel. Saunders v. Indus. Comm., 101
Ohio St.3d 125, 128, 802 N.E.2d 650, 653 (2004). Throughout their Motion, Defendants refer to
the provisions of 01-COM-11 as “guidelines”, DMSJ p. 5, 15, a “written policy directive,”
“protocol”, id. at 2, a “policy”, id. at 3, and an “instruction manual.” /d. at 15. But Defendants’
characterization is not determinative. “It is the effect of the [document], not how the [agency]
chooses to characterize it, that is important.” /d. citing Ohio Nurses Assn., Inc. v. Ohio State Bd.
of Nursing
Edn. & Nurse Registration, 44 Ohio St.3d 73, 76, 540 N.E.2d 1354, 1356 (1989).
A tule has “general and uniform operation” and must “be uniformly applied by the
promulgating agency to those affected by the rule.” Ohio Assn. of Cty. Bds. of M. R. & Dev.
Disabilities v. Pub. Emp. Ret. Sys., 61 Ohio Misc. 2d 836, 843 (Com. Pl. 1990); see also BRT
Express, Inc. vy. Pub. Util. Comm., 763 N.E.2d 1241 (10th Dist. 2001). Defendants admit that 01-
COM-11 applies to all Ohio executions carried out in Ohio. Def. Ans., p. 6, 924; Interrog. Ans.
No. 4, No. 22, Mohr 12/22/16 Depo., p. 141-42, Gray Depo., p. 91
In Ohio Nurses Assn., the State Board of Nursing had issued a “position paper” that
described “under what circumstances an LPN ‘may start’ an IV.” 44 Ohio St.3d at 74, 540
N.E.2d at1355. The establishing of intravenous lines had previously been exclusively within the
province of RNs. /d. at 73, 1354. The board, like Defendants, DMSJ p. 12, argued that its
“position paper” was not a rule and that there was no statutory requirement that it issue rules
15
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - 08
delineating the scope of nursing practice. /d. at 74, 1355. The absence of a requirement to issue
tules did not change the fact that the “position paper” functioned as a rule and thus had to
comply with statutory rulemaking requirements. /d. at 76, 1356. Like the “position paper” in
Ohio Nurses Assn., 01-COM-11 regulates, among many things, establishing IV lines and who
may do it. Regardless of what Defendants call it, 01-COM-11 is a rule.
IV. THE DOCTRINE OF LACHES DOES NOT BAR RELIEF
Defendants argue that they are entitled to summary judgment because O’Neal’s claims
are barred by the equitable doctrine of laches. DMSJ, p. 21. Laches is defined as “an omission to
assert a right for an unreasonable and unexplained length of time, under circumstances
prejudicial to the adverse party”. Connin v. Bailey, 15 Ohio St.3d 34, 35, 472 N.E.2d 328 (1984)
quoting Smith v. Smith, 107 Ohio App. 440, 443, 146 N.E.2d 454 (1957), aff'd, 168 Ohio St.
447, 156 N.E.2d 113 (1959). The party asserting laches must establish by a preponderance of the
evidence the following (1) unreasonable delay or lapse of time in asserting a right; (2) absence of
an excuse for the delay; (3) knowledge, actual or constructive, of the injury or wrong, and (4)
prejudice to the other party. State ex rel., Meyers v. Columbus, 71 Ohio St.3d 603, 605, 646
N.E.2d 173 (1995). “The elements of laches are set forth in the conjunctive”, and thus failure to
establish even one element, dooms the application of the doctrine as a whole. State ex rel. Allied
Sys. Holdings, Inc. v. Joseph L. Donders, et al., 2012-Ohio-5855 916 (10 Dist. 2012).
A. There has been no inexcusable delay.
O’Neal has not delayed asserting his rights. Delay alone, does not establish laches. If
challenges to earlier protocols were required, O’ Neal should be excused. He has three times
received sub-70 IQ scores. O'Neal v. Bagley, 743 F.3d 1010, 1022 (6" Cir. 2013). Moreover, the
person invoking the doctrine must show that the delay caused material prejudice and Defendants
have not done so. Connin, 15 Ohio St.3d at 35-36, 472 N.E.2d 328 (1984).
16
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - O84
1. O’ Neal did not have to challenge past protocols in order to seek declaratory
judgment on 01-COM-11 adopted October 7, 2016.
Defendants argue that O’Neal should have challenged earlier protocols even though
litigation, under which O’Neal was entitled to a stay, was proceeding and no execution date was
set. DMSJ, p. 21-22. Defendants’ statement is simply wrong. O’Neal did not have standing at
that time. ProgressOhio v. JobsOhio, 139 Ohio St.3d 520, 521 (2014). There was no real
controversy. There was no reasonable expectation that any of the since-rescinded policies would
be applied to him. The Sixth Circuit has recognized that when substantive changes are made in
Ohio’s execution protocol the statute of limitations for filing a §1983 action starts again because
a new cause of action has accrued. Cooey v. Strickland, 479 F.3d 412, 422, 424 (6th Cir. 2007).
Similarly, each time Defendants act to adopt a protocol without complying with the law and
Ohio Constitution, a new controversy arises. Under Defendants’ rational, an unconstitutional act
would be forever unreviewable if it was not challenged in its first incarnation.
2. O'Neal did not have standing to bring a declaratory judgment action until 01-COM-
11 was adopted, he had exhausted his state and federal court proceedings, and he
had an execution date.
“In order to obtain declaratory relief, a plaintiff must establish (1) a real controversy
between the parties, (2) a justiciable controversy and (3) that speedy relief is necessary to
preserve the rights of the parties.” R.A.S. Entertainment, Inc. v. Cleveland, 130 Ohio App.3d 125,
128, 719 N.E.2d 641 (1998). In Mid-American Fire and Casualty v. Heasley, 113 Ohio St.3d,
2007-Ohio-1248 99, 863 N.E.2d 142, the Supreme Court of Ohio observed that declaratory
judgment is only available when an actual controversy exists. “Not every conceivable
controversy is an actual one . in order for a justiciable question to exist, “the danger or
dilemma of the plaintiff must be present, not contingent on the happening of hypothetical future
events***and the threat . . . must be actual and genuine and not merely possible or remote”
17
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - 08
The State moved to set an execution date for Plaintiff O’ Neal because “O’ Neal has
exhausted his state and federal review”. State v. O’Neal, Ohio Sp. Ct., Case No. 1998-0147
(1/15/2015). Available at http://www.sconet.state.ch.us/Clerk/eoms /#/caseinfo/ 1998/0147 . The
Supreme Court granted the Motion and set an execution date for October 10, 2018. /d. Entry
(6/8/2015). A subsequent reprieve made O’Neal’s current execution date February 21, 2021.
Defendants adopted 01-COM-11 and filed it in federal court on October 7, 2016. Jn Re:
Ohio Execution Protocol Litigation, Case No. 2:11-CV-1016 (S.D. Ohio) (Doc. 667, 10/7/2016).
Litigant Raymond Tibbetts, who had an upcoming execution date, challenged 01-COM-
11 (10/7/2016) almost immediately upon its adoption by amending his federal complaint. Jn Re:
Ohio Execution Protocol Litigation, Case No. 2:11-CV-1016 (S.D. Ohio) (Doc. 691, filed
10/26/2016). His Forty-Fourth Cause of Action (Doc. 691) alleged that “Ohio’s Execution
Protocol is unlawful because it was not promulgated as a rule.” Thus, Defendants had actual
notice of the issue within 10 days of the adoption of 01-COM-11.
Defendants moved to dismiss the Forty-Fourth Cause of Action in the Federal District
Court arguing that it was solely a state law claim. (Doc. 981 filed 2/6/2017). The Court agreed
and dismissed the Forty-Fourth Cause of Action. (Doc. 1088 filed 7/12/2017)
O’Neal filed the instant case on January 24, 2018. There has been no unreasonable or
unexplained delay. Defendants have not established the first two prongs of their laches defense.
B. Defendants have failed to show material prejudice.
Defendants have not proven material prejudice, as they must, to sustain their burden on
? The Sixth Circuit held in Cooey v. Strickland, 479 F.3d 412, 422, 424 (6th Cir. 2007) that the statute-of-limitations
period for these claims resets when the lethal injection policy changes in a way that relates to the “core complaints”;
Cooey (Beuke) v. Strickland, 604 F.3d 939, 942 (6th Cir. 2010) (explaining that “[g]iven the change in policy, the
statute of limitations to challenge the new procedure began to run anew”). As a result, those with later execution
dates or without dates set were not required to amend until the end of the two-year statute-of-limitations period.
O'Neal filed his declaratory action in this court before that 2-year window had closed.
18
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758
0E523 - 08
the laches defense. The time between the adoption of 01-COM-11 and O’Neal initiating this case
was less than 18 months. Even a fifteen-year delay did not permit the application of the doctrine
of laches in Thirty-Four Corporation v. Sixty-Seven Corporation, 15 Ohio St.3d 350, 474 N.E.
2d 295 (1984). And Lockwood v. Wildman, 13 Ohio 430, 452 (1844) stands for the proposition
that “A plaintiff who has asserted his or her claim promptly but incorrectly, so that the first suit
is dismissed, is not chargeable with laches when and if he or she ultimately and with reasonable
promptness files the proper suit. Ohio Jur.3d, Limitations and Laches, Pt. II, Laches, §187. Here,
as explained above, former plaintiff Tibbetts challenged 01-COM-11 as soon as it was adopted.
The claim was dismissed before O’Neal’s amended complaint was due and he sought relief in
this court before the time for amendment had expired.
What constitutes laches is a matter of sound judicial discretion because it is largely a
question of fact, “to be resolved in each case according to its special circumstances.” Bitonte v.
Tiffin Savings Bank, 65 Ohio App.3d 734, 739, 585 N.E.2d 460 (1989). To establish material
prejudice, the party invoking laches must show either: “(1) the loss of evidence helpful to the
case; or (2) a change in position that would not have occurred if the right [had] been promptly
asserted”. Dyrdek v. Dyrdek, 2010-Ohio-2329 4119 (4"" Dist. 2010) citing, State ex rel. Donovan
vy. Zajac, 125 Ohio App.3d 245, 708 N.E.2d 254, 258 (App.11 Dist. 1998). Defendants have
failed to prove that, if there was delay, it caused either the loss of evidence helpful to the case or
that they changed their position because O’ Neal failed to bring this action earlier in time.
Defendants say they will be prejudiced if they have to delay executions in order to follow
the law if this court grants relief. There is no reason to believe this is true - O’Neal’s executio
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - 068 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO CIVIL DIVISION JAMES DERRICK O’NEAL, et al., ) Case No.: 2018-CV-00758 PLAINTIFFS, JUDGE MARK A. SERROTT vs. THE STATE OF OHIO, DEFENDANTS. PLAINTIFF O’NEAL’S MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Defendants move for summary judgment (“DMSJ”) arguing that: 1) O’Neal has not claimed that 01-COM-11should have been adopted under R.C. 119.01 and thus has not pled a claim properly under the Declaratory Judgment Act, DSMJ p. 1, 10; 2) the Ohio legislature, by requiring under R.C. 2949.22 that the warden or a designee carry out lethal injection executions, vested ODRC with the discretion to determine the manner and procedures for carrying out a court-ordered execution, DMSJ p. 1, 15; 3) in vesting ODRC with discretion, the legislature manifestly, as is “dispositive[ly]” demonstrated by the Legislature’s silence on 01-COM-11, intended ODRC’s execution protocols to fall outside Ohio’s statutory rulemaking requirements, DMSJ p. 1, 20; and 4) O’Neal delayed in bringing suit by not challenging earlier and since- rescinded execution protocols and thus the doctrine of laches bars this action. DMSJ p. 1, 22. Defendants’ claims are conclusory. They are not supported by Rule 56(C) evidence. Defendants’ Motion for Summary Judgment on each claim must be denied Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - 06 L PLAINTIFF O’NEAL HAS PROPERLY PLED HIS CLAIMS UNDER THE DECLARATORY JUDGMENT ACT. A. O’Neal’s claims are subject to declaratory judgment. Defendants claim they are entitled to summary judgment arguing that the question of whether 01-COM-11' was validly enacted under R.C. 111.15 and the Ohio Constitution cannot be determined in a declaratory judgment action because R.C. 2721.03 provides in pertinent part Subject to division (B) of section 2721.02 of the Revised Code, .. . any person whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, . may have determined any question of construction or validity arising under the instrument, constitutional provision, statute, rule, and obtain a declaration of rights, status, or other legal relations under it. (emphasis added). Defendants claim that the provision allowing this court to determine “rights, status, or other legal relations [that] are affected by a tule as defined in section 119.01” precludes determining whether Defendants are required and failed to comply with R.C. 111.15 - a statute - and violated Article II of the Ohio Constitution - a constitutional provision — and other statutory and constitutional requirements - in adopting 01-COM-11. DMSJ, p. 10. It is true as a matter of law that a rule subject to R.C. 111.15 and adopted without meeting the statutory filing requirements is invalid. R.C. 111.15. See State ex rel. Ryan v. State Teachers Retirement Sys., 71 Ohio St.3d 362, 366, 643 N.E.2d 1122, 1126-27 (1994), (rule invalid because it was not filed as required by R.C. 111.15), State ex rel. Bd. of Edn. of N. Canton Ex. Village Sch. Dist. v. Holt, 174 Ohio St. 55, 57, 186 N.E.2d 862, 863 (1962) (same). Moreover, there is no bar to direct review of 01-COM-11. The Ohio Supreme Court held that “the enumeration in R.C. 2721.03 does not limit or restrict the exercise of the general powers conferred in R.C. 2721.02 in any proceeding where declaratory relief is sought, in which ‘ All references to 01-COM-11 are to the protocol adopted on October 7, 2016 unless otherwise specified. 2 Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - O70 a judgment or decree will terminate the controversy or remove the uncertainty.” Carroll v. Washington Township Zoning Comm., 56 Ohio St.2d 164, 168 (1978) (emphasis added). R.C 2721.02(A) provides that “courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding is open to objection on the ground that a declaratory judgment or decree is prayed for under this chapter.” And R.C. 2721.06 states that the provisions of 2721.03 do not limit the broad declaratory powers identified in R.C. 2721.02. Ohio's Declaratory Judgment Act is “remedial and shall be liberally construed and administered.” R.C. 2721.13. American Life & Accl. Ins. Co. v. Jones, 152 Ohio St. 287 (1949), further establishes that declaratory judgment can be used to determine whether 01-COM-11 was enacted in compliance with the requirements of R.C. 111.15. There, the administrator of the bureau of unemployment compensation determined that insurance agents were employees for whom unemployment compensation contributions were to be made by the plaintiff American Life. In 1940, American Life filed an administrative appeal and lost its argument that insurance agents were exempt from the definition of employees. /d. at 295, 296. American Life then brought a declaratory judgment action under Ohio Gen. Code Sec. 12102-2 seeking to void the administrative construction of the definition of “employment” and to recoup the payments it made from 1941 to 1946. At that time, the Declaratory Judgment Act, Ohio Gen. Code Sec. 12102-2, made no provision for the review of any form of administrative law or administrative decision. The Ohio Supreme Court found no bar to the declaratory action because American Life’s claim was “within the spirit of the Uniform Declaratory Judgments Act.” /d. at 296 and syl. 2. See also Burger Brewing Co. v. Dept. of Liquor Control, 34 Ohio St.2d 93, syl. 1 (1973). The Ohio Supreme Court also found that, though an administrative action was at issue, Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - O71 American Life sought to vindicate its rights under the statute that gave administrative authority to the bureau of unemployment compensation. /d. at 294, 298. The court found no bar to deciding whether there had been compliance with the statute that gave rise to the administrative action. Similarly, the Franklin County Court of Appeals found declaratory judgment appropriate to determine whether a “measure being implemented by the agency . . . is, or is not, a rule” that requires “promulgation through the [statutory] rule making process”. W.C. Cupe Community School v. Zelman, 2008-Ohio-2800, § 18 (10"" Dist. 2008). See also Victory Academy v. Zelman, 2008-Ohio-3561, f10-13 (10" Dist. 2008), Farley Trubee v. Ohio Expo. Commission, No 96APD0S5-705, 97-LW-1217 (10" Dist. 1997), Buckeye Quality Care Centers, Inc. v. Fletcher, 48 Ohio App.3d 150, 548 N.E.2d 973 (10" Dist. 1988), Ohio Assn. of County Bds. of Mental Retardation & Developmental Disabilities v. Pub. Emp. Retirement Sys, 61 Ohio Misc. 2d 836, 842, 585 N.E.2d 597 (1990). And this Court found, in denying Defendants’ Motion to Dismiss an agency regulation or policy that enlarges the scope of administrative rule or statute from which it derives, that is substantive in nature, and that has a preclusive effect and is not merely advisory can be a “rule” subject to a declaratory judgment action. 01-COM-11 is not merely advisory but expresses strict procedures to be followed in carrying out an execution...As in [W.C. Cupe v.] Zelman, the complaint sufficiently alleges the existence of a rule for which a declaratory judgment may be appropriate. (Decision and Entry Denying Motion to Dismiss at p. 11-12) (emphasis added). Thus, deciding whether 01-COM-11 is a rule subject to R.C. 111.15, whether 111.15 has been violated by Defendants’ admitted non-compliance with the statute, and whether there have been violations of Article II of the Ohio Constitution, the separation of powers, and other statutory and constitutional provisions, is well within the scope of Ohio’s Declaratory Judgment Act. O’Neal notes that, while Defendants base their first claim on their view that declaratory Judgment applies only to rules adopted under R.C. Ch. 119 and ODRC is not an agency Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - O7 identified, nor 01-COM-11 a rule defined, in Ch. 119, they make the same argument later in their Motion. DMSJ, p.15-16. ODRC is an agency under R.C. 111.15(A)(2) definition and 01-COM- 11 arule under R.C. 111.15(A)(1). The determination of whether 01-COM-11 violates R.C 111.15, Article II of the Ohio Constitution, and the separation of powers falls squarely within the parameters of R.C. 2721.03 which includes adjudication of issues arising under statutory and constitutional provisions. O’Neal’s response to this argument regarding Defendant’s first claim is also intended to respond to it when it is repeated elsewhere in their Motion. B. Defendants failed to meet the Summary Judgment standard with their first claim. Defendants do not provide evidence showing that they are exempt from the rulemaking requirements of R.C. 111.15. Their support for the claim that “As a matter of law, challenges to rules promulgated under R.C. 111 cannot be brought in a declaratory judgment action”, is that the Declaratory Judgment Act does not make specific reference to R.C. 111.15 (addressed above), and the assertion that when the General Assembly “instructs” an agency to adopt rules, it identifies which rulemaking statute to follow. (DMSJ p. 11). Defendants misapprehend the scope of R.C. 111.15: it applies to rules “adopted” regardless of whether a specific instruction to adopt a rule was given in any particular statute. R.C. 111.15(A)(1) says: “‘Rule’ includes any tule, regulation, bylaw, or standard having a general and uniform operation adopted by an agency under the authority of the laws governing the agency.” (emphasis added) In addition to misapprehending the law, defendants have failed to present facts and evidence that would permit a ruling in their favor. Defendants do not deny that 01-COM-11 isa tule under R.C. 111.15 or that ODRC is an agency subject to R.C. 111.15. And they have provided no evidence to support such a claim. Every reference in support of their claim is based on 01-COM-11 not being a rule, and ODRC not being an agency, under R.C. 119. DMSJ pp. 10- Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - O7 12. “When seeking summary judgment on the ground that the nonmoving party cannot prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element of the nonmoving party's claims”. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. The moving party does not discharge this initial burden under Civ. R. 56 by simply making conclusory allegations. /d. Rather, the moving party must affirmatively demonstrate by affidavit or other evidence that the nonmoving party has no evidence to support its claims. /d. Defendants have failed to support their first claim with applicable law and Rule 56(C) evidence. IL. Defendants seek summary judgment on their claim that because they are to carry out executions under R.C. 2949.22, they have been delegated the power to choose “the specific manner and procedures” for doing so. Defendants argue that R.C. 2949.22 is presumed to be constitutional, courts have recognized that “the statute's guiding principle” is to comport with the Eighth Amendment, and therefore, that they have been delegated the authority to adopt 01-COM-11. DMSJ, p. 13. Defendants claim that because they are to carry out “lethal injection” executions under R.C 2949.22, they have been delegated the authority to choose “the specific manner and procedures for carrying out” executions. DMSJ, p.15. R.C. 2949.22 in fact places the duty to carry out executions on the warden or an ODRC designee. However, despite the obligation to give every word in the statute its clear meaning, R.C. 1.47(B), Defendants, without explanation, ignore those words and claim the duty to execute, and the accompanying rulemaking power they perceive, to be theirs. Defendants have not met the summary judgment standard. They offer no evidence of the delegation of authority they claim. Moreover, the facts show that Defendants have not merely implemented the requirements of R.C. 2949.22 but have changed them thus usurping legislative power. Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - O74 A. There Was No Delegation of the Power Defendants Claim: The Power that was Used Was Usurped from the Ohio General Assembly by Defendants. Ohio Rev. Code 2949.22(A) requires a quick and painless death caused by “a lethal injection of a drug or combination of drugs.” Assuming arguendo that the Ohio General Assembly intended to delegate any rulemaking authority to Defendants regarding carrying out executions under R.C. 2949.22, that delegation could only be to carry out executions by means of “lethal injection” — the method of execution set out in the statute. Defendants have changed Ohio’s method of execution to “IV Injection.” 01-COM-11 VI.G.7 and VI. H. It is true as a matter of law that a rule adopted pursuant to an unconstitutional usurpation of legislative power is invalid. Williams v. Spitzer Autoworld Canton, L.L.C., 122 Ohio St. 3d 546, 913 N.E.2d 410 (2009), D.A.B.E., Inc. v. Toledo-Lucas County Bd. Of Health, 96 Ohio St.3d 250, 260, 773 N.E.2d 536, 546 (2002) citing Chambers v. St. Mary's School, 82 Ohio St.3d 563, 567, 697 N.E.2d 198 (1998) 1. Only the legislature can define the manner of execution. The Ohio General Assembly has the exclusive power “to define and classify and prescribe punishment for felonies committed within the state.” State v. O'Mara, 105 Ohio St. 94 syl. 1 (1922). The “General Assembly has the plenary power to prescribe crimes and fix penalties.” State v. Morris, 55 Ohio St.2d 101, 112 (1978). Only the General Assembly may “define” a penalty to be imposed by the State. “[T]he authority to define and propose penalties is limited to the General Assembly.” State Ex Rel. Sensible Norwood, et al., v. Hamilton County Bad. of Elections, 148 Ohio St.3d 176 (2016). The specific manner of execution chosen by the Ohio General Assembly is the injection of drugs that will cause a quick and painless death. Contrary to Defendants’ claim, they do not have and cannot be given the legislative power to choose “the specific manner and procedures for carrying out” executions. DMSJ, p.15. Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - O7 Defendants, by changing Ohio’s method of execution from “injection” to “IV injection,” have usurped the legislative power. The IV execution method they adopted requires establishing intravenous access to inmate’s veins and entails a series of injections into an IV tube to inflict death in stages. Establishing the IV lines has been known to take more than two hours. State v. Broom, 146 Ohio St.3d 60, 61-63 (2016). There are no limits on the type of cuttings/piercings/ woundings that may be used to establish IV lines. 01-COM-11, G.7.c., Mohr Dec. J. Depo., p. 53, p. 55. There is no limit on the amount of time or number or wounds that may be inflicted in order to attempt to establish IV lines. 01-COM-11, G.7.c., Mohr Dec. J. Depo., p. 51, lines 7-13. There is no limit on the areas of the inmate’s body that may used for establishing IV lines. 01-COM-11, G.7.b.ii, H.2, Mohr Dec. J. Depo., p. 51. This is a process that is not contemplated in the language of R.C. 2949.02. The IV insertion process has not materially changed since the time of Broom’s attempted execution. See Ex. A to O’Neal’s MSJ, ODRC 01-COM-11 (May 14, 2009). The intravenous administration of drugs is not the “injection” required under 2949.22 and Defendants’ choice of it usurped the legislative power to fix penalties 2. The common meaning of injection. The common and ordinary meaning of “inject” at the time 2949.22 was enacted was: “1 to force or drive (a liquid) into some passage, cavity, or chamber; esp., to introduce or force (a liquid) into some part of the body by means of a syringe or hypodermic needle, etc.” The word “{njection” meant “1 an act or instance of injecting.” WEBSTER’S NEW WORLD COLLEGE DICTIONARY, 4th Ed., World Wide Books, Inc. (2001) p. 735. Director Mohr testified that his understanding of the word injection is consistent with this definition. Mohr Dec. J. Dep., p. 45, lines 5-16. Under the rules of statutory construction this common meaning is the statutory meaning. State ex rel. Singer v. Fairland Loc. Sch. Dist. Bd. of Educ., 151 Ohio St.3d 594, 597, 91 N.E.3d 732 (2017). Thus, a lethal injection as contemplated under R.C. 2949.22 is a direct 8 Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - O7 injection into the inmate’s body of a lethal drug or drugs that will cause a quick and painless death. Director Mohr also testified that such an injection had been authorized in Ohio in the past. Mohr Dec. J. Depo., p. 48, lines 19-25. 3. The Ohio General Assembly knows the difference between injection and intravenous Moreover, there is no chance that the General Assembly intended the word “injection” to mean “IV”. When the General Assembly addresses intravenous drug administration, it specifies the IV character explicitly. The use of intravenous access is closely regulated in Ohio. For example, R.C. 4723.67, “Administration of medications by aides”, says in pertinent part: (D) A medication aide shall not administer prescription medications by any of the following methods: (1) Injection; (2) Intravenous therapy procedures; (3) Splitting pills for purposes of changing the dose being given. R.C. 4730.203, “Delegation of administration of drug”, provides in pertinent part: (C) A physician assistant may delegate administration of a drug only if all of the following conditions are met: (4) The drug will not be administered intravenously. Extensive training is required under Ohio law for intravenous drug administration. See for example R.C. 4723.19 “Courses of study in the safe performance of intravenous therapy”, R.C. 4723.18(A)(3)(a) “Administration of adult intravenous therapy,” R.C. 4721.181 “Intravenous therapy procedures.” The difference between an injection and an IV procedure is well known to the Legislature and has been addressed in statutes for many years. See Ohio Nurses Assn., Inc. v. Ohio State Bd. of Nursing Edn. & Nurse Registration, 44 Ohio St.3d 73, 76, 540 N.E.2d 1354, 1356 (1989) and the 1980’s statutes discussed therein. When the Ohio General Assembly intends to address the IV administration of drugs, it says so. Again, assuming arguendo that the Ohio General Assembly intended to delegate any rulemaking authority to Defendants regarding carrying out executions under R.C. 2949.22, that 9 Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - O77 delegation could only be to carry out executions that would result in a “quick and painless death.” 01-COM-11 provides instead for death in stages. Three drugs are used in sequence the first, midazolam, to render the prisoner unconscious, Mohr 12/22/2016 Depo., p. 105, lines 5-7, followed by a paralytic to paralyze the prisoner id. at p. 100, line 5 — p.101, line 18, and the third, potassium chloride to stop the prisoner’s heart. 01-COM-11. Mohr testified that when ODRC 01- COM-11 was adopted it was expected to take 15 to 20 minutes from the first “IV injection” to death. Mohr Depo. 12/22/2016, p. 118, line 20 - p. 119, line 1. This 15 to 20-minute death is not the quick death described in R.C. 2949.22(A). Nor does the death in stages adopted under 01- COM-11 comply with or implement the 2949.22(A) painless death requirement. Mohr Dec. J. Depo., p. 48, Theodore Depo, p. 7, and see Ex. B to O’Neal’s Mot. S.J. in this court Jn Re: Ohio Execution Protocol Litigation, Case No. 2:11-CV-1016 (S.D. Ohio, January 14, 2019) 4, Any delegation of power could only have been to implement the statutory language. Defendants assert that the state and federal courts “have recognized that ensuring the humane execution guaranteed by the Eighth Amendment is the statute’s [2949.22] guiding principle” and that 01-COM-11 meets this guiding principle. DMSJ p. 13. They cite Covey v. Strickland, 599 F.3d 210, 215 (6 Cir. 2009) in support. The protocol at issue in Cooey eliminated “Ohio’s use of a three-drug protocol, which allegedly created a risk that the individual would not be properly anesthetized before the third, painful injection induced cardiac arrest” and established an “intramuscular injection as a back-up procedure.” Cooey at 215. Neither of these protections is available under 01-COM-11 now. And the Sixth Circuit made no finding about the guiding principles of the Ohio law. They next cite State v. Broom, 146 Ohio St. 3d 60 (2016) for the same proposition. Again, Broom court did not address any “guiding principle” under 2949.22 and, as with Cooey, the protocol addressed is no longer in effect. Defendants have admitted 10 Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - O78 repeatedly that they have received no legislative guidance regarding 01-COM-11. The cases they cite neither provide guidance nor substitute for the legislature’s public policy determination that Ohio uses a lethal injection that causes a quick and painless death Defendants cite State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011) to support their claim that the Ohio legislature “vested” in them the authority to adopt 01-COM-11. E//is does nothing for Defendants’ position. The Nebraska statute, R.R.S. §83-965(2) specifically delegated the rulemaking authority to the Director of Correctional Services and the Nebraska death penalty statute, R.R.S. §83-964, specifically provided for “intravenous injection.” Defendants argue that Ellis demonstrates that delegating authority is appropriate in matters that are “highly technical” or require “a course of continuous decision”. DMSJ., p. 14. But the Ohio Legislature did not choose the “highly technical” intravenous method that Nebraska did. The only highly technical aspects of Ohio’s execution procedure arise from 01-COM-11 and Defendants’ decision to use “TV injection” and a series of drugs known to cause pain to induce death in stages instead of implementing the lethal injection and quick death required by R.C. 2949.22. The history of Ohio execution methods shows that the General Assembly has always chosen simple and direct methods that required a quick action to cause death. See Hanging — Revised Statutes of Ohio, Title II, Ch. 7, Sec. 7338 (1880) “The mode of inflicting the punishment of death shall be by hanging by the neck until the person is dead;” Electrocution “A death sentence must be executed by causing a current of electricity, of sufficient intensity to cause death, to pass through the body of the convict. The application of such current must be continued until such convict is dead”. Page’s Ohio Gen. Code, Part Fourth, Ch. 35, §13456-2 (1938). These past execution methods required only that the condemned prisoner be placed in the execution device without the need to injure him/her before the execution began. The same is true 11 Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - O7 of an “injection” under R.C. 2949.22(A) — the area of the inmate’s body where the injection is to be given needs to be accessible and the injection given. The statute actually places the duty to carry out executions on the warden or an ODRC designee. /d. This is further evidence that the legislative intent was to use a simple execution method. Defendants have created the complexity they argue warrants a delegation of power that was neither made nor required by the statute. Defendants also cite Sims v. Kernan, 30 Cal. App. 5th 105 (2018) noting that once the California Legislature decided the “method by which [the death penalty] will be carried out” i was appropriate to allow the California Department of Correction to adopt procedures to implement the statute. Cal. Penal Code §3604, identifies “intravenous injection” as the execution method and specifically delegates rule making authority in its statutory language. Equally important is the fact that the California statute does not require the use of a drug or combination of drugs that will result in a quick and painless death. The California Dept. of Corrections used the “intravenous injection” method chosen by the California Legislature. Under those circumstances the California Appellate Court found the delegation appropriate. The case is inapposite. Defendants have not implemented the “lethal injection” required by Ohio law but instead adopted a new execution method of “IV Injection.” Defendants have not implemented the “quick and painless death” required by R.C. 2949.22 but instead adopted a 15 to 20-minute, Mohr Depo. 12/22/2016, p. 118, process of death in stages using drugs they know to be painful Til. Defendants seek summary judgment on their claim that, the Ohio legislature, by enacting R.C. 2949.22, adopted “a valid legislative policy to exclude the Department’s execution protocol from the formal, rulemaking process” and allowed it to choose “the specific manner and procedures” for carrying out executions. Defendants argue that because R.C. 2949.22(A) does not provide any “substantive guidance or requirements with respect to the way in which ODRC is to ‘ensure that the death sentence is executed’””, the Ohio General Assembly exempted them from Ohio’s statutory 12 Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - 080 rulemaking process and allows them to choose Ohio’ manner” of execution. DMSJ p. 19-20. Even if the legislature intended to cede the power to define Ohio’s execution method, the delegation was unconstitutional. “[T]he authority to define and propose penalties is limited to the General Assembly.” State Ex Rel. Sensible Norwood, et al., v. Hamilton County Bd. of Elections, 148 Ohio St.3d 176 (2016). It is true as a matter oflaw that a rule adopted pursuant to an unconstitutional delegation of power is invalid. Blue Cross of Northeast Ohio v. Ratchford, 64 Ohio St. 2d 256, 259, 416 N.E.2d 614, 617 (1980), Matz v. JL. Curtis Cartage Co., 132 Ohio St 271, syl. 6, 7 N.E.2d 220 (1937). The delegation of rulemaking power without legislative guidance is unconstitutional. B/ue Cross, at syl Defendants argue, though they claim ODRC “expects strict compliance” with 01-COM- 11, that following formal rule making requirements would impede their ability to “make variances” to accommodate inmate requests such as providing a wedge-shaped cushion or extending an inmate’s family visit. /d. They argue that 01-COM-11 is similar to “guidelines” implementing a properly adopted administrative rule and statute for collecting school data that were found exempt from rulemaking requirements in Princeton City School Dist. Bd. of Edn., v. Ohio St. Bd. of Edn., 96 Ohio App.3d 558, 645 N.E.2d 773 (1 Dist. 1994). DMSJ, p.19. Defendants find the adoption of 01-COM-11 comparable and characterize it as “a kind of instruction manual” rather than a rule. /d. Defendants’ adoption of 01-COM-11 is not comparable to the situation in Princeton. There the statute, R.C. 3301.0714, “gave the state board explicit instructions” and “great specificity” on the rulemaking procedure and content, the rule was adopted in accordance with the statute, the guidelines amplified the rule, the statute required the adoption of the guidelines and expressly exempted them from statutory rulemaking procedures, and the “guidelines” adopted explained the properly adopted rule and were limited to 13 Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - O81 details about the collection of data. Princeton, 96 Ohio App.3d at 563-63, 645 N.E.2d at 776-77 Defendants also compare the adoption of 01-COM-11 to the situation in Arbogast v. Peterson, 91 Ohio App.3d 22, 631 N.E.2d 673 (9" Dist. 1993). There, the superintendent of a state psychiatric facility was permitted to adopt a no-smoking rule for the institution, over which he had executive charge, without using Ohio’s statutory rulemaking process. There is no valid comparison between an institutional no-smoking policy and adoption of the execution method and procedures for the entire State of Ohio. The case simply has no application in this matter. 1. The Ohio General Assembly’s “silence and inaction” is not evidence of a legislative delegation of power that is exempt from Ohio’s statutory, rulemaking process. Defendants next argue that the Legislature has given “dispositive” imprimatur to their adoption of 01-COM-11 by its “silence and inaction.” DMSJ, p. 20. Defendants proceed on an unfounded premise. Defendants have not submitted 01-COM-11 to the rulemaking procedure that would bring it to the General Assembly’s attention. R.C. 106.042(B) provides that The failure of the general assembly to adopt a concurrent resolution invalidating a proposed or existing rule is not a ratification of the lawfulness or reasonableness of the proposed or existing rule or of the validity of the procedure by which the rule was proposed or adopted. There is no basis for assuming legislative approval from silence. Defendants rely on dicta in State ex rel. Gross v. Indus. Comm’n, 115 Ohio St.3d 249, 261 (2007), wherein Justice O’Conner, in dissent, “presumed” that the legislature “knew of our [Ohio Supreme Court] decisions.” DMSJ p. 20. There is no reasonable basis for claiming that the legislature is aware of agency actions that were never submitted to the legislative review process of R.C. 111.15 Defendants next claim that they were “filling a gap” when they adopted 01-COM-11 because the “legislature did not provide any instruction regarding how to define or carry out a lethal injection.” Motion, p. 21. In fact, the legislature gave very clear instructions: “injection” and “quick and painless.” There was no gap to fill. Using a simple injection and a drug or drugs 14 Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - 08 that would cause a quick and painless death was all that was required. If, as Defendants contend, it became impossible for them to obtain such drugs, the answer was to take the problem to the Ohio General Assembly; not to legislate on their own. 2. 01-COM-11 is a rule subject to R.C. 111.15 The Ohio Supreme Court has held “that what an agency labels a document is not conclusive” as to whether the promulgation is a rule. State ex rel. Saunders v. Indus. Comm., 101 Ohio St.3d 125, 128, 802 N.E.2d 650, 653 (2004). Throughout their Motion, Defendants refer to the provisions of 01-COM-11 as “guidelines”, DMSJ p. 5, 15, a “written policy directive,” “protocol”, id. at 2, a “policy”, id. at 3, and an “instruction manual.” /d. at 15. But Defendants’ characterization is not determinative. “It is the effect of the [document], not how the [agency] chooses to characterize it, that is important.” /d. citing Ohio Nurses Assn., Inc. v. Ohio State Bd. of Nursing Edn. & Nurse Registration, 44 Ohio St.3d 73, 76, 540 N.E.2d 1354, 1356 (1989). A tule has “general and uniform operation” and must “be uniformly applied by the promulgating agency to those affected by the rule.” Ohio Assn. of Cty. Bds. of M. R. & Dev. Disabilities v. Pub. Emp. Ret. Sys., 61 Ohio Misc. 2d 836, 843 (Com. Pl. 1990); see also BRT Express, Inc. vy. Pub. Util. Comm., 763 N.E.2d 1241 (10th Dist. 2001). Defendants admit that 01- COM-11 applies to all Ohio executions carried out in Ohio. Def. Ans., p. 6, 924; Interrog. Ans. No. 4, No. 22, Mohr 12/22/16 Depo., p. 141-42, Gray Depo., p. 91 In Ohio Nurses Assn., the State Board of Nursing had issued a “position paper” that described “under what circumstances an LPN ‘may start’ an IV.” 44 Ohio St.3d at 74, 540 N.E.2d at1355. The establishing of intravenous lines had previously been exclusively within the province of RNs. /d. at 73, 1354. The board, like Defendants, DMSJ p. 12, argued that its “position paper” was not a rule and that there was no statutory requirement that it issue rules 15 Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - 08 delineating the scope of nursing practice. /d. at 74, 1355. The absence of a requirement to issue tules did not change the fact that the “position paper” functioned as a rule and thus had to comply with statutory rulemaking requirements. /d. at 76, 1356. Like the “position paper” in Ohio Nurses Assn., 01-COM-11 regulates, among many things, establishing IV lines and who may do it. Regardless of what Defendants call it, 01-COM-11 is a rule. IV. THE DOCTRINE OF LACHES DOES NOT BAR RELIEF Defendants argue that they are entitled to summary judgment because O’Neal’s claims are barred by the equitable doctrine of laches. DMSJ, p. 21. Laches is defined as “an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party”. Connin v. Bailey, 15 Ohio St.3d 34, 35, 472 N.E.2d 328 (1984) quoting Smith v. Smith, 107 Ohio App. 440, 443, 146 N.E.2d 454 (1957), aff'd, 168 Ohio St. 447, 156 N.E.2d 113 (1959). The party asserting laches must establish by a preponderance of the evidence the following (1) unreasonable delay or lapse of time in asserting a right; (2) absence of an excuse for the delay; (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice to the other party. State ex rel., Meyers v. Columbus, 71 Ohio St.3d 603, 605, 646 N.E.2d 173 (1995). “The elements of laches are set forth in the conjunctive”, and thus failure to establish even one element, dooms the application of the doctrine as a whole. State ex rel. Allied Sys. Holdings, Inc. v. Joseph L. Donders, et al., 2012-Ohio-5855 916 (10 Dist. 2012). A. There has been no inexcusable delay. O’Neal has not delayed asserting his rights. Delay alone, does not establish laches. If challenges to earlier protocols were required, O’ Neal should be excused. He has three times received sub-70 IQ scores. O'Neal v. Bagley, 743 F.3d 1010, 1022 (6" Cir. 2013). Moreover, the person invoking the doctrine must show that the delay caused material prejudice and Defendants have not done so. Connin, 15 Ohio St.3d at 35-36, 472 N.E.2d 328 (1984). 16 Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - O84 1. O’ Neal did not have to challenge past protocols in order to seek declaratory judgment on 01-COM-11 adopted October 7, 2016. Defendants argue that O’Neal should have challenged earlier protocols even though litigation, under which O’Neal was entitled to a stay, was proceeding and no execution date was set. DMSJ, p. 21-22. Defendants’ statement is simply wrong. O’Neal did not have standing at that time. ProgressOhio v. JobsOhio, 139 Ohio St.3d 520, 521 (2014). There was no real controversy. There was no reasonable expectation that any of the since-rescinded policies would be applied to him. The Sixth Circuit has recognized that when substantive changes are made in Ohio’s execution protocol the statute of limitations for filing a §1983 action starts again because a new cause of action has accrued. Cooey v. Strickland, 479 F.3d 412, 422, 424 (6th Cir. 2007). Similarly, each time Defendants act to adopt a protocol without complying with the law and Ohio Constitution, a new controversy arises. Under Defendants’ rational, an unconstitutional act would be forever unreviewable if it was not challenged in its first incarnation. 2. O'Neal did not have standing to bring a declaratory judgment action until 01-COM- 11 was adopted, he had exhausted his state and federal court proceedings, and he had an execution date. “In order to obtain declaratory relief, a plaintiff must establish (1) a real controversy between the parties, (2) a justiciable controversy and (3) that speedy relief is necessary to preserve the rights of the parties.” R.A.S. Entertainment, Inc. v. Cleveland, 130 Ohio App.3d 125, 128, 719 N.E.2d 641 (1998). In Mid-American Fire and Casualty v. Heasley, 113 Ohio St.3d, 2007-Ohio-1248 99, 863 N.E.2d 142, the Supreme Court of Ohio observed that declaratory judgment is only available when an actual controversy exists. “Not every conceivable controversy is an actual one . in order for a justiciable question to exist, “the danger or dilemma of the plaintiff must be present, not contingent on the happening of hypothetical future events***and the threat . . . must be actual and genuine and not merely possible or remote” 17 Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - 08 The State moved to set an execution date for Plaintiff O’ Neal because “O’ Neal has exhausted his state and federal review”. State v. O’Neal, Ohio Sp. Ct., Case No. 1998-0147 (1/15/2015). Available at http://www.sconet.state.ch.us/Clerk/eoms /#/caseinfo/ 1998/0147 . The Supreme Court granted the Motion and set an execution date for October 10, 2018. /d. Entry (6/8/2015). A subsequent reprieve made O’Neal’s current execution date February 21, 2021. Defendants adopted 01-COM-11 and filed it in federal court on October 7, 2016. Jn Re: Ohio Execution Protocol Litigation, Case No. 2:11-CV-1016 (S.D. Ohio) (Doc. 667, 10/7/2016). Litigant Raymond Tibbetts, who had an upcoming execution date, challenged 01-COM- 11 (10/7/2016) almost immediately upon its adoption by amending his federal complaint. Jn Re: Ohio Execution Protocol Litigation, Case No. 2:11-CV-1016 (S.D. Ohio) (Doc. 691, filed 10/26/2016). His Forty-Fourth Cause of Action (Doc. 691) alleged that “Ohio’s Execution Protocol is unlawful because it was not promulgated as a rule.” Thus, Defendants had actual notice of the issue within 10 days of the adoption of 01-COM-11. Defendants moved to dismiss the Forty-Fourth Cause of Action in the Federal District Court arguing that it was solely a state law claim. (Doc. 981 filed 2/6/2017). The Court agreed and dismissed the Forty-Fourth Cause of Action. (Doc. 1088 filed 7/12/2017) O’Neal filed the instant case on January 24, 2018. There has been no unreasonable or unexplained delay. Defendants have not established the first two prongs of their laches defense. B. Defendants have failed to show material prejudice. Defendants have not proven material prejudice, as they must, to sustain their burden on ? The Sixth Circuit held in Cooey v. Strickland, 479 F.3d 412, 422, 424 (6th Cir. 2007) that the statute-of-limitations period for these claims resets when the lethal injection policy changes in a way that relates to the “core complaints”; Cooey (Beuke) v. Strickland, 604 F.3d 939, 942 (6th Cir. 2010) (explaining that “[g]iven the change in policy, the statute of limitations to challenge the new procedure began to run anew”). As a result, those with later execution dates or without dates set were not required to amend until the end of the two-year statute-of-limitations period. O'Neal filed his declaratory action in this court before that 2-year window had closed. 18 Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Feb 08 3:51 PM-18CV000758 0E523 - 08 the laches defense. The time between the adoption of 01-COM-11 and O’Neal initiating this case was less than 18 months. Even a fifteen-year delay did not permit the application of the doctrine of laches in Thirty-Four Corporation v. Sixty-Seven Corporation, 15 Ohio St.3d 350, 474 N.E. 2d 295 (1984). And Lockwood v. Wildman, 13 Ohio 430, 452 (1844) stands for the proposition that “A plaintiff who has asserted his or her claim promptly but incorrectly, so that the first suit is dismissed, is not chargeable with laches when and if he or she ultimately and with reasonable promptness files the proper suit. Ohio Jur.3d, Limitations and Laches, Pt. II, Laches, §187. Here, as explained above, former plaintiff Tibbetts challenged 01-COM-11 as soon as it was adopted. The claim was dismissed before O’Neal’s amended complaint was due and he sought relief in this court before the time for amendment had expired. What constitutes laches is a matter of sound judicial discretion because it is largely a question of fact, “to be resolved in each case according to its special circumstances.” Bitonte v. Tiffin Savings Bank, 65 Ohio App.3d 734, 739, 585 N.E.2d 460 (1989). To establish material prejudice, the party invoking laches must show either: “(1) the loss of evidence helpful to the case; or (2) a change in position that would not have occurred if the right [had] been promptly asserted”. Dyrdek v. Dyrdek, 2010-Ohio-2329 4119 (4"" Dist. 2010) citing, State ex rel. Donovan vy. Zajac, 125 Ohio App.3d 245, 708 N.E.2d 254, 258 (App.11 Dist. 1998). Defendants have failed to prove that, if there was delay, it caused either the loss of evidence helpful to the case or that they changed their position because O’ Neal failed to bring this action earlier in time. Defendants say they will be prejudiced if they have to delay executions in order to follow the law if this court grants relief. There is no reason to believe this is true - O’Neal’s executio