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Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758
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IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
CIVIL DIVISION
JAMES D. O’NEAL, et. al.,
PLAINTIFFS,
vs. : CASE No. 18CV-758
THE STATE OF OHIO, et. al., : JUDGE SERROTT
DEFENDANTS.
CLEVELAND JACKSON’S COMPLAINT SEEKING DECLARATORY JUDGMENT
NATURE OF ACTION
1 This is an action under Ohio Rev. Code § 2721.03 seeking a declaratory judgment and
injunctive relief to determine and enforce the rights of Plaintiff Cleveland Jackson not to be
subjected to execution procedures, currently designated by the Ohio Department of Rehabilitation
and Correction Communication Policy 01-COM-11 (eff. Oct. 7, 2016) (attached as Exhibit 1 and
available at www.drc.ohio.gov/policies/communications) (hereinafter ODRC 01-COM-11), that
Defendants intend to use to carry out Plaintiff’s death sentence, when those procedures were
adopted by Defendants without complying with the requirements of Ohio Rev. Code § 111.15 for
the adoption of administrative rules, (2) were adopted through the executive-branch Defendants’
unconstitutional usurpation of state legislative power, and/or (3) were adopted through the Ohio
General Assembly’s unconstitutional delegation of legislative power.
2. Plaintiff Jackson further seeks declaratory judgment and relief to determine and enforce
their substantive and procedural due process rights under Ohio Rev. Code Chapter 111 and the
Ohio and United States Constitutions as related to Defendants’ adoption of and intention to useFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758
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administrative rules for carrying out his death sentences when those rules were adopted without
complying with the Ohio Rev. Code § 111.15.
JURISDICTION AND VENUE
3 The jurisdiction of this Court is invoked pursuant to Ohio Rev. Code § 2721.03.
4. Venue is proper for this Court under Ohio Civil Rule 3(B)(4), as Franklin County is the
county in which Defendants maintain their principal offices.
5. There is a justiciable controversy between the parties. Plaintiff Jackson is sentenced to
death and Defendants intend to carry out their executions using the procedures set out in ODRC
O1-COM-11. Plaintiff contends that ODRC 01-COM-11 is void and based on an unconstitutional
usurpation of legislative power or an unconstitutional delegation of legislative power. The
executive branch Defendants have represented that they were delegated authority to adopt ODRC
Ol-COM-11 under Ohio Rev. Code § 5120.01
6 This case involves the procedures under ODRC 01-COM-11 that will be used to carry out
Plaintiff Jackson’s death sentence. The United States Supreme Court has recognized that “death is
different,” Kurman v. Georgia, 408 U.S. 238, 286-89 (1972) (Brennan, J., concurring) (“[dJeath is
a unique punishment”; “[dJeath ... is in a class by itself”); id. at 306 (Stewart, J., concurring)
(“penalty of death differs from all other forms of criminal punishment, not in degree but in kind”);
Gregg v. Georgia, 428 U.S. 153, 188 (1976) (Joint opinion Stewart, Powell, and Stevens, JJ.)
(“death is different in kind from any other punishment”); Woodson v. North Carolina, 428 U.S.
280, 305 (1976) (Joint opinion of Stewart, Powell, and Stevens, JJ.) (“penalty of death is
qualitatively different from a sentence of imprisonment, however long”); Lockett v. Ohio, 438 U.S.
586, 604 (1978) (“qualitatively different”). As a result of this fact, litigation in such cases is often
lengthy and typically includes multiple levels of review. This is a process that can take severalFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758
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years. And, if Plaintiff Jackson prevails, additional time will be needed for legal and constitutional
rulemaking and legislative actions to be completed. “[T]his is a case where the impact on the
plaintiffs is sufficiently direct and immediate to render the issues appropriate for judicial review.”
Burger Brewing Co. v Liquor Control Comm., 34 Ohio St.2d 93, 98, 296 N.E.2d 261, 265 (1973).
7. The nature of the rule at issue, ODRC-01-COM-11, is such that Plaintiff cannot wait until
it is used against him to seek a determination of its validity because, in most cases, once ODRC
01-COM-11 is applied the Plaintiff will be dead.
PARTIES
8. Plaintiff Cleveland Jackson is an inmate in the custody of the State of Ohio who has been
sentenced to death. His execution is scheduled for September 13, 2018.
9. [RESERVED BLANK].
10. Defendant the State of Ohio is a state of the United States of America and is the government
entity in whose name Plaintiff Jackson was sentenced to death. The State of Ohio holds Plaintiff
Jackson in its custody, and intends to execute Plaintiff Jackson using ODRC 01-COM-11. The
State of Ohio includes the executive, legislative, and judicial branches of government. Ohio
Constitution, art. II, III, IV. Actions of both the executive and legislative branches are involved in
this lawsuit. The Ohio Attorney General acts as counsel for the state and its various components
and receives service for the same. Ohio Rev. Code § 109.02; Ohio R. Civ. Pro. 4.2(K)
11. Defendant Ohio Department of Rehabilitation and Correction (hereinafter ODRC) is a
department of the executive branch. Ohio Rev. Code § 121.02(P).
12. Defendant ODRC, under the direction of Director Gary Mohr, was in charge of the
adoption of ODRC 01-COM-11 and intends to oversee its use and implementation in the
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FACTUAL ALLEGATIONS
13. Plaintiff Jackson, and the other plaintiffs, are currently under sentence of death in the State
of Ohio and is in the custody of Defendant State of Ohio
14. Under the present circumstances, Plaintiff Jackson will be subjected to the procedures set
out in ODRC 01-COM-11 as the protocol for his execution.
15. | ODRC 01-COM-11 became effective on October 7, 2016 and bears a signature indicating
that it was approved by ODRC Director Gary Mohr. (Ex. 1, p. 1).
16. | ODRC 01-COM-11 states “This policy is issued in compliance with Ohio Revised Code
§ 5120.01 which delegates to the Director of the Department of Rehabilitation and Correction the
authority to manage and direct the total operations of the Department and to establish such rules
and regulations as the Director prescribes.” (Ex. 1, p. 1).
17. There have been 20 versions of Ohio’s Execution Protocol, with each subsequent policy
superseding the previous policy. The following are the effective dates of each version (and its
ODRC Policy number):
. March 30, 1994 (Sec. 1, No. 9)
. April 12, 2001 (Sec. 1, No. 9)
. August 21, 2001 (Sec. 1, No. 9)
. September 11, 2001 (Sec. 1, No. 9)
. November 21, 2001 (Sec. 1, No. 9)
. July 17, 2003 (Sec. 1, No. 9)
. January 8, 2004 (01-COM-11)
. July 10, 2006 (01-COM-11)
. October 11, 2006 (01-COM-11)Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758
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. May 14, 2009 (01-COM-11)
. November 30, 2009 (01-COM-11)
. November 15, 2010 (01-COM-11)
. March 9, 2011 (01-COM-11)
. April 11, 2011 (01-COM-11)
. September 18, 2011 (01-COM-11)
. October 10, 2013 (01-COM-11)
. April 28, 2014 (01-COM-11)
. January 9, 2015 (01-COM-11)
. June 29, 2015 (01-COM-11)
. October 7, 2016 (01-COM-11)
18. All have been enacted by ODRC as policies. ODRC Director Mohr testified that he does
not know why ODRC has not complied with Ohio’s administrative rule making requirements, or
how it was decided not to follow those requirements, in enacting the current and past execution
protocols. (Ex. 2, Mohr Depo., p. 142-43.)
19. Ohio Rev. Code § 5120.01 states:
The director of rehabilitation and correction is the executive head of the department
of rehabilitation and correction. All duties conferred on the various divisions and
institutions of the department by law or by order of the director shall be performed
under the rules and regulations that the director prescribes and shall be under the
director’s control. Inmates committed to the department of rehabilitation and
correction shall be under the legal custody of the director or the director’s designee,
and the director or the director’s designee shall have power to control transfers of
inmates between the several state institutions included under section 5120.05 of the
Revised Code.
20. Ohio Rev. Code § 5120.42 states:
The department of rehabilitation and correction shall make rules for the proper
execution of its powers and may require the performance of additional duties by theFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758
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officers of the several institutions, so as to fully meet the requirements, intents, and
purposes of Chapter 5120 of the Revised Code, and particularly those relating to
making estimates and furnishing proper proof of the use made of all articles
furnished or produced in such institutions. In case of an apparent conflict between
the powers conferred upon any managing officer and those conferred by such
sections upon the department, the presumption shall be conclusive in favor of the
department.
21. Ohio Rev. Code § 2949.22(A) states
Except as provided in division (C) of this section, a death sentence shall be executed
by causing the application to the person, upon whom the sentence was imposed, of
a lethal injection of a drug or combination of drugs of sufficient dosage to quickly
and painlessly cause death. The application of the drug or combination of drugs
shall be continued until the person is dead. The warden of the correctional
institution in which the sentence is to be executed or another person selected by the
director of rehabilitation and correction shall ensure that the death sentence is
executed.
22. The Ohio Supreme Court has held that an execution under Ohio Rev. Code § 2949.22(A)
does not begin until drugs begin to flow into the condemned prisoner’s body. State v. Broom, 146
Ohio St. 3d 60, 65-66 (2016) (“As the statute makes clear, the execution commences when the
lethal drug enters the IV line.”).
23. The Ohio Supreme Court has affirmed that the legislative policy in Ohio Rev. Code §
2949.22(A) requiring that the inmate’s death be quick and painless applies only once the execution
drugs begin to flow into the inmate’s body and not to the process used to introduce the drugs into
the inmate. “The statute facially requires the state to use an amount of drugs sufficient to cause a
quick and painless death but does not require the same for the entire process.” State v. Broom,
2012-Ohio-587, 55, (8th Dist.) (February 16, 2012), aff'd, 146 Ohio St. 3d 60, 65-66 (2016)
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24. Defendants state in ODRC 01-COM-11 that they are delegated by Ohio Rev. Code
§ 5120.01 the legislative authority to create the rules governing the entire execution process from
preparation to conclusion. (Ex. 1, ODRC 01-COM-11, p.1.)
25. As a governmental entity created by statute, Ohio Rev. Code § 121.02(P), the Ohio
Department of Rehabilitation and Correction is an agency of the State of Ohio. Ohio Rev. Code
§ 111.15(A)(2) (“‘[a]gency’ means any governmental entity of the state and includes... any. .
department.”)
CLAIMS FOR RELIEF
FIRST CLAIM: ODRC 01-COM-11 Is an Invalidly Adopted Rule
26. Plaintiff Jackson incorporates by reference all previous and subsequent statements and
allegations as if fully re-written in this claim
27. It is Plaintiff Jackson’s claim, as set out below, that Defendants have not been and cannot
be delegated rule making authority to enact ODRC 01-COM-11, but that if such delegation has
been legally and constitutionally made, Defendants have failed to validly and legally adopt ODRC-
01-COM-11
28 The Director of the ODRC is empowered to make rules and regulations in aid of “[a]ll
duties conferred on the various divisions and institutions of the department by law or by order of
the director.” Ohio Rev. Code § 5120.01.
29. There is no language in Ohio Rev. Code § 5120.01 that exempts the Director or the
Department from Ohio’s administrative rulemaking procedures
30. | Ohio Rev. Code § 111.15(B) sets out the procedures for the adoption of administrative
tules by state agencies that are not governed by other statutory administrative rule making
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31 No language in Ohio Rev. Code § 111.15 generally or § 111.15(B) particularly exempts
the ODRC from compliance with its rule making requirements.
32. ODRC 01-COM-11 is a rule within the meaning of Ohio Rev. Code § 111.15 (A)(1)
“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. “Rule” does
not include any guideline adopted pursuant to section 3301.0714 of the Revised
Code, any order respecting the duties of employees, any finding, any determination
of a question of law or fact in a matter presented to an agency, or any rule
promulgated pursuant to Chapter 119. or division (C)(1) or (2) of section 5117.02
of the Revised Code. “Rule” includes any amendment or rescission of a rule.
33 Ohio courts have held that a rule 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 Mental Retardation & Developmental Disabilities v. Pub. Emp. Ret. Sys., 61 Ohio Misc.
2d 836, 843 (Com. PI. 1990); see also B&T Express, Inc. v. Pub. Util. Comm., 145 Ohio App.3d
656, 763 N.E.2d 1241 (10th Dist. 2001).
34. By its language, ODRC 01-COM-11 applies uniformly to all Ohio prisoners to be executed
by the State of Ohio. (Ex. 1, p.1).
35 Defendants admit that ODRC 01-COM-11 applies uniformly to all Ohio prisoners to be
executed by the State of Ohio. (Ex. 2, Deposition of Gary Mohr, p. 141-42.)
36. Ohio Rev. Code § 111. 1(B)(1) requires that “[a]ny rule, other than a rule of an emergency
nature,” in its final form, be “filed in electronic form with both the secretary of state and the
director of the legislative service commission” and “with the joint committee on agency rule
review.”
37. Ohio Rev. Code§ 111.15(B)(1) specifies that a rule becomes effective “on the tenth day
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38 ODRC failed to file ODRC 01-COM-11 in electronic or any form with the secretary of
state, the director of the legislative service commission, or the joint committee on agency rule
review (JCARR).
39. | ODRC 01-COM-11 is not a rule of an emergency nature.
40. Ohio Rev. Code § 111.15 defines “rule of an emergency nature” as one “necessary for the
immediate preservation of the public peace, health, or safety.” It also requires that an emergency
tule “state the reasons for the necessity.” An emergency rule becomes invalid at the end of the one
hundred twentieth day it is in effect. See Ohio Rev. Code § 111.15(B)(2).
41 Although an emergency rule need not go through legislative review, it still must “be filed
in electronic form with the secretary of state, the director of the legislative service commission,
and the joint committee on agency rule review.” /d.
42. ODRC 01-COM-11 does not purport to have been necessary for the immediate
preservation of the public peace, health, or safety. (Ex. 1, passim).
43 Had ODRC 01-COM-11 been a rule of an emergency nature it would have expired in
February 2017, on the one hundred and twentieth day after its identified effective date of
October 7, 2016. Ohio Rev. Code § 111.15(B)(2); (Ex. 1, p.1.)
44. Ohio Rev. Code § 111.15(D) requires that, at least 65 days before any department files a
tule under division (B)(1), “it shall file the full text of the proposed rule in electronic form with
the joint committee on agency rule review, and the proposed rule is subject to legislative review
and invalidation under section 106.021 of the Revised Code.”
45. ODRC failed to submit ODRC 01-COM-11 for legislative review by filing it with the joint
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46. The legislative review requirement does not apply to an internal management rule. Ohio
Rev. Code § 111.15(D)(4).
47. ODRC 01-COM-11 is not an internal management rule.
48. Ohio Rev. Code § 111.15(A)(3) provides: “‘Internal management rule’ means any rule,
regulation, bylaw, or standard governing the day-to-day staff procedures and operations within an
agency.” Executions are not day-to-day staff procedures. Executions are of such “uniqueness” and
“of such inapplicability to the general operations of the ODRC that the ODRC rule (ODRC 01-
COM-01. VI. B. 1.) encouraging all staff to participate is ignored and, according to Director Mohr,
“would not be, in my opinion, applicable in the case of the execution policy.” Ex. 2, p. 131-32.
Director Mohr also acknowledged that those with an interest in ODRC 01-COM-11, Ohio’s
execution protocol, include the general public and those subject to execution. Ex. 2, p. 136.
49. Even if ODRC 01-COM-11 could reasonably be viewed as an internal management rule,
it would still, as required by Ohio Rev. Code § 111.15(B), have to have been filed in electronic
form with the secretary of state, the director of the legislative service commission, and the Joint
Committee on Agency Rule Review (hereinafter JCARR). It was not.
50. Ohio courts require strict adherence to the filing requirements of Ohio Rev. Code § 111.15.
The Tenth District Court of Appeals reasoned that “[o]ne of the primary purposes behind the filing
requirements set forth in R.C. 111.15(B)(1) and (D) is to provide JCARR with an opportunity to
review the substantive portions of new rules to determine whether the rules exceed the scope of
the adopting agency’s authority, conflict with other rules, or conflict with the legislative intent of
the statute pursuant to which the rules are being adopted.” B&T Express, Inc. v. Pub. Util. Comm.,
145 Ohio App. 3d 656, 665, 763 N.E.2d 1241, 1249 (10th Dist. 2001).
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51 Ohio courts do not hesitate to invalidate the rules when an agency failed to comply with
these requirements in the enactment of the rules at issue. In State ex rel. Bd. of Edn. of N. Canton
Exempted Village School Dist. v. Holt, 174 Ohio St. 55, 57, 186 N.E.2d 862, 863 (1962), the Ohio
Supreme Court held that a rule adopted by the Ohio School Employees Retirement Board was
invalid because the rule had not been filed as required by Ohio Rev. Code § 111.15
52. Because ODRC failed to comply with the review and filing requirements of Ohio Rev.
Code § 111.15, ODRC 01-COM-11 is an invalidly adopted rule and is therefore void.
53. Subjecting Plaintiff Jackson to execution under this void procedure will deny him due
process of law as guaranteed by the Ohio Constitution, art. I, Sec. 2 and the Fourteenth Amendment
to the United States Constitution,
SECOND CLAIM: Enacting the Execution Protocol Exceeded the Scope of the Rule Making
Authority Delegated Under Ohio Rev. Code § 5120.01 to ODRC and the Director of ODRC
and Unconstitutionally Usurped Legislative Powers.
54. Plaintiff Jackson incorporates by reference all previous and subsequent statements and
allegations as if fully re-written in this claim
55. An administrative agency has only such regulatory power as is delegated to it by the
General Assembly. Authority that is conferred by the General Assembly cannot be extended by an
administrative agency
56. The Ohio Supreme Court has held that “the intention of the grant of power, as well as the
extent of the grant, must be clear; that in case of doubt that doubt is to be resolved not in favor of
the grant but against it.” State ex rel. A. Bentley & Sons Co. v. Pierce, 96 Ohio St. 44, 47, 117 N.E.
6, 7 (1917).
57. The Ohio Supreme Court has found, where the legislature did not grant an agency authority
to promulgate certain regulations, the agency exceeded its rule-making authority and usurped the
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legislative power of the General Assembly when it engaged in rule-making. See, e.g., D.A.B.E.,
Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St. 3d 250, 260, 773 N.E.2d 536, 546 (2002).
58 Ohio Rev. Code § 5120.01 authorizes the ODRC director to prescribe rules under which
the “duties conferred on the various divisions and institutions of the department by law or by order
of the director” shall be performed and Defendants state that ODRC 01-COM-11 is enacted
pursuant to their authority under Ohio Rev. Code § 5120.01. Ex. 1, p.1
59. Ohio Rev. Code Chapter 5120 confers no duties on “divisions and institutions of the
department” regarding carrying out death sentences.
60. The duty to carry out the death penalty is not delegated to a division or institution of the
department.
61 Ohio Rev. Code § 2949.22(A) confers on the individual warden in charge of the prison in
which the execution will be carried out, or another person designated by the ODRC director, the
duty to ensure that the death sentence is carried out.
62. Ohio Rev. Code § 2949.22(B) requires that the execution itself be carried out “under the
direction of the warden . . . [or] deputy warden.”
63 Ohio Rev. Code § 2949.24 permits only the warden to make the return “to the clerk of the
court of common pleas of the county immediately from which the prisoner was sentenced of the
manner of the execution of the warrant.”
64. The legislature did not grant ODRC or its director the power to promulgate rules regarding
executions. ODRC 01-COM-11 is therefore void.
65. | ODRC and ODRC’s director exceeded the scope of its rule-making authority under Ohio
Rev. Code § 5120.01 when it enacted ODRC 01-COM-11. The execution protocol ODRC 01-
COM-11 is therefore void.
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66. Subjecting Plaintiff Jackson to execution under this void procedure will deny him due
process of law as guaranteed by the Ohio Constitution, art. I, Sec. 2 and the Fourteenth Amendment
to the United States Constitution.
THIRD CLAIM: Defendant the State of Ohio, Legislative Branch, Unconstitutionally
Delegated its Legislative Power to the Executive Branch Defendants.
67. Plaintiff Jackson incorporates by reference all previous and subsequent statements and
allegations as if fully re-written in this claim
68. The Ohio General Assembly did not intend to delegate the powers to Defendants that
Defendants have exercised in the adoption of ODRC 01-COM-11. If such delegation was intended,
it was an unconstitutional delegation of legislative authority and a violation of the separation of
powers
69. Under the Ohio Constitution, all legislative power is delegated by the people to the Ohio
General Assembly. Ohio Constitution, art. II, Sec. 1. Matz. v. J.L. Curtis Cartage Co., 132 Ohio
St. 271, 279, 7 N.E.2d 220, 224-25 (1937).
70. In the exercise of its lawmaking power the Ohio General Assembly is the “ultimate arbiter
of public policy.” Arbino v. Johnson, 116 Ohio St. 3d 468, 472, 880 N.E.2d 420, 428 (2007).
71. The legislature cannot delegate its lawmaking authority
It is a maxim in constitutional law that power conferred by a Constitution upon a
Legislature to make laws cannot be delegated by such body to any other body or
authority, unless the authority to so delegate is given by the Constitution itself,
either expressly or by implication. The legislative prerogative is one which involves
judgment, wisdom, and discretion of a high order, and the trust thus imposed cannot
be shifted to other shoulders; neither can the judgment and discretion of any other
body be substituted for that of the Legislature itself.
State ex rel. Bryant vy. Akron Metropolitan Park Dist., 120 Ohio St. 464, 478, 166 N.E. 407 (1929).
72. The legislative power is broad and encompasses regulation of actions “in violation of social
duties or subversive of good order.” State v. Marble, 72 Ohio St. 21, 32, 73 N.E. 1063 (1905)
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(quoting Reynolds v. United States, 98 U.S. 145, 164 (1879)); State v. Stouffer, 28 Ohio App. 2d
229, 232, 276 N.E.2d 651 (10th Dist. 1971). In the exercise of such power
various burdens are imposed: Criminals are deprived of their liberty; the
implements of crime are destroyed; vice and pauperism are controlled; noxious
trades are regulated; nuisances are suppressed; children are required to attend
school; the property of infants and persons non compos is placed in the control of
others; the construction of buildings in populous neighborhoods is regulated;
provision is made for the greater safety of passengers upon railways and
steamboats; employers are required to provide safe places in which the work of
their employees is to be performed; the hours of work, in employments deleterious
to the health, limited; the employment of children in factories prohibited; pure food
laws are enacted; physicians, dentists, and druggists are licensed; and so the list
might be almost indefinitely extended by specific instances of authorized legislative
regulations, enforcing the social compact, for the protection of life, health, morals,
property, and the general weal of the community.
Marble, 72 Ohio St. at 32-33 (citing Parks v. State, 159 Ind., 211, 220, 64 N.E. 862, 866,
(1902))
73. The exercise of legislative power is subject to the state and federal constitutional limitations
of due process and equal protection. Marble, 72 Ohio St. at 33-34
74. Defendants claim that they were delegated the authority to adopt ODRC 01-COM-11 under
Ohio Rev. Code § 5120.01. Ex. 1., p.1
[A] statute does not unconstitutionally delegate legislative power if it establishes,
through legislative policy and such standards as are practical, an intelligible
principle to which the administrative officer or body must conform and further
establishes a procedure whereby exercise of the discretion can be reviewed
effectively.
Blue Cross of Northeast Ohio v. Ratchford, 64 Ohio St. 2d 256, 260, 416 N.E.2d 614, 618
(1980).
75. Ohio Rev. Code § 5120.01 does not establish legislative policy or set any standards
regarding execution procedures, it identifies no intelligible principle to which Defendants must
conform, and it establishes no procedure for effective review of execution procedures.
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76. By leaving to the discretion of the Defendant ODRC the determination of the policies and
decisions that (a) define lethal injection, (b) dictate the process by which lethal drugs are
administered to the condemned inmate, (c) determine the number and type of piercings, needle
jabs, or cuts that can be made on the condemned inmate’ s body in order to carry out his execution,
(d) identify the “drug or combination of drugs” to be used in a lethal injection, (e) preclude the
condemned inmate’s access to confidential attorney client communication on the day of execution
and severely limit it on the day before, and (f) restrict access to the courts, the Ohio General
Assembly has unconstitutionally delegated its legislative power to the ODRC.
Executive Branch ODRC has been allowed to define “Lethal Injection”
77. The phrase “lethal injection” in Ohio Rev. Code § 2949.22 is not defined. The common
and ordinary meaning of “inject” at the time Ohio Rev. Code § 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 “injection”
meant “1 an act or instance of injecting.” WEBSTER’ S NEW WORLD COLLEGE DICTIONARY, 4th Ed.,
World Wide Books, Inc. (2001) p. 735
78 Under the rules of statutory construction this common meaning is the statutory meaning.
Thus a lethal injection as contemplated under Ohio Rev. Code § 2949.22 is a direct injection into
the inmate’s body of a lethal drug or drugs that will cause a quick and painless death.
79. | ODRC 01-COM-11 adopts a procedure in which intravenous catheters are to be inserted
into the inmate’s body. To those catheters may be attached a heparin lock, a saline drip, and/or
intravenous tubing. ODRC 01-COM-11 VI. G.7. and 8. Under ODRC 01-COM-11, lethal drugs
will be administered by “IV injection” meaning injection into intravenous tubing using one of
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several drugs or combinations of drugs. ODRC 01-COM-11 VI. H. ODRC under ODRC 01-COM-
11 is not carrying out “lethal injection” as contemplated by the statutory language.
80. By defining lethal injection to mean “IV injection” ODRC has changed what was to be an
uncomplicated injection into a lengthy and complex process that has resulted in painful and failed
executions. See, e.g., execution of Joseph Clark on May 2, 2006; Christopher Newton on May 24,
2007; and attempted executions of Romell Broom on September 15, 2009; Alva Campbell on
November 15, 2017; see also Reynolds v. Strickland, 583 F.3d 956, 957 (6th Cir. 2009) (noting
Ohio has “experienced serious and troubling difficulties in executing at least three inmates, most
recently Romell Broom”), State v. Broom, 146 Ohio St. 3d 60, 61-63 (2016), Liam Stack,
“Execution in Ohio Is Halted After No Usable Vein Can Be Found,” N.Y. Times,
https://www.nytimes.com/2017/11/15/us/ohio-execution-alva-campbell.html
81. Defining crimes and penalties is a legislative power. State v. Gonzales, 150 Ohio St. 3d
276, 278, 81 N.E.3d 419 (2017); see also State v. Marble, 72 Ohio St. 21, 32, 73 N.E. 1063 (1905).
Executive Branch ODRC has been delegated unchecked authority to decide how much pain
will be inflicted on the condemned inmate in preparation for execution
82. ODRC 01-COM-11 does not limit the ways in which intravenous sites may be established
The current ODRC 01-COM-11 leaves it entirely up to the execution team and warden what
methods will be used to pierce, puncture, or cut into the condemned inmate’s veins. ODRC 01-
COM-IIG.7.b., c., and d.
83 The injuries inflicted under ODRC 01-COM-11 to establish intravenous access are
prohibited by existing law. The piercing/cutting/wounding done to the condemned inmate in
preparation for execution constitute assault and/or battery. Ohio Rev. Code § 2903.01 (assault). A
“person is subject to liability for battery when he acts intending to cause a harmful or offensive
contact, and when a harmful contact results.” Love v. City of Port Clinton, 37 Ohio St.3d 98, 99,
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524 N.E.2d 166 (1988) (officer subduing and handcuffing is battery unless privileged); Stafford v.
Columbus Bonding Ctr., 177 Ohio App.3d 799, 810, 896 N.E.2d 191, 200 (Ohio Ct. App. 2008);
Harris v. United States, 422 F.3d 322, 330 (6th Cir. 2005).
84. Only the Ohio General Assembly can change the Ohio law prohibiting assault. Only the
Ohio General Assembly can set the policy and define the parameters of the piercing/cutting/
wounding of the condemned prisoner that will be allowed as preparatory steps to carrying out an
execution.
There is No Legislative Policy to Guide the Executive Branch Regarding the Process
Required to Carry Out an Execution
85. When the legislature determines the policy and law, it can, by providing appropriate
guidance, authorize an executive branch agency to implement the law and policy. D.A.B.E., Inc.
vy. Toledo-Lucas County Bd. of Health, 2002 Ohio 4172, 96 Ohio St. 3d 250, 773 N.E.2d 536 (Ohio
2002)
86. The Legislature has provided no guidance or policy for the preparatory steps of carrying
out an execution by lethal injection.
87. The Ohio Supreme Court has held that an execution under Ohio Rev. Code § 2949.22(A)
does not begin until drugs begin to flow into the condemned prisoner’s body. State v. Broom, 146
Ohio St. 3d 60, 66 (2016) (“As the statute makes clear, the execution commences when the lethal
drug enters the IV.”)
88 The Ohio Supreme Court has affirmed that the legislative policy in Ohio Rev. Code
§ 2949.22(A) requiring that the inmate’s death be quick and painless applies only once the
execution drugs begin to flow into the inmate’s body and not to the process used to introduce the
drugs into the inmate. “The statute facially requires the state to use an amount of drugs sufficient
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to cause a quick and painless death but does not require the same for the entire process.” State v.
Broom, 2012-0hio-587, § 55, (8th Dist., Feb. 16, 2012), aff'd, 146 Ohio St. 3d 60, 65-66 (2016)
89. The legislative authority to use death as a penalty for crime is the greatest exercise of power
against an individual that can be exercised by the state. The extinguishment of life is the
extinguishment of all rights. But second only to inflicting death is the infliction of physical harm
Physical harm cannot be inflicted legally without legislative authorization. See Ohio Rev. Code
§ 2903.01; Love v. City of Port Clinton, 37 Ohio St. 3d 98, 99, 524 N.E.2d 166 (1988). The
legislative decision to pierce/cut/wound the condemned prisoner and the parameters of such
piercing/cutting/wounding that will be allowed in preparation for execution cannot be delegated.
90. Plaintiff Jackson has a liberty interest, protected by both the state and federal constitutions,
in not being subjected to physical injuries that are not part of the punishment of execution. Ohio
Constitution, art. I, Sec. II; Fourteenth Amendment to the United States Constitution.
91. Unlike past methods of execution used in Ohio — hanging and electrocution — where the
preparatory steps required only that the condemned prisoner be placed in the execution device
without the necessity of injuring him/her before the execution began, lethal injection preparation
as conceived by the executive branch defendants and confirmed by the Ohio Supreme Court
requires that the physical injury of piercing/cutting/wounding the condemned prisoner take place
before the execution begins. State v. Broom, 146 Ohio St. 3d at 65-66 (2016). 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 General Code, Part Fourth, Ch. 35, §13456-2 (1938)).
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92. In the absence of either legislative policy or guidance, Defendants have taken over the
legislative function and granted themselves the authority (1) to make an unlimited number of
piercings/cuts/wounds in the effort to create an opening in the condemned inmate’s body through
which lethal drugs can be introduced (ODRC 01-COM-11, VI. G. 8. ¢. and d.), (2) to make
piercings/cuts/wounds any place on the condemned inmate’s body (ODRC 01-COM-11, VI. G.
7.b. ii; H. 2. d.), and (3) to do so over an unlimited time period (ODRC 01-COM-11, VL G. 7.b.).
93 The legislature cannot delegate to the executive branch this unchecked, unguided,
discretionary authority. Blue Cross of Northeast Ohio v. Ratchford, 64 Ohio St. 2d 256, 259-60,
416 N.E.2d 614, 617-18 (1980).
94. Administrative regulations cannot dictate public policy but rather can only administer
policy already established by the General Assembly: D.A.B.E., Inc. v. Toledo-Lucas County Bd. of
Health, 96 Ohio St. 3d 250, 2002-Ohio-4172, 773 N.E.2d 536, at syl. 2
Choice of Drugs is Legislative
95 The legislature failed to provide adequate guidance and policy regarding the choice of
drugs to be used in Ohio lethal injection executions. Ohio Rev. Code § 2949.22 requires only that
drugs “of sufficient dosage to quickly and painlessly cause death” be used.
96. Defendants have chosen drugs that (1) they know are unavailable, and/or (2) they know
will cause pam.
97. | ODRC 01-COM-11 lists pentobarbital and thiopental sodium (barbiturates) as possible
single drug execution methods. However, ODRC has represented that these drugs are not legally
available to the ODRC and thus they are not currently in use. (Ex. 2, Mohr Deposition. p. 139.)
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98 As a result, ODRC currently uses a three-drug combination of midazolam hydrochloride
(Ex. 3) and one of the following three drugs: vecuronium bromide (Ex. 4), pancuronium bromide
(Ex. 5), or rocuronium bromide (Ex. 6), plus potassium chloride. (Ex. 7)
99. Midazolam hydrochloride is a member of the benzodiazepine class of drugs. (Ex. 3,
Midazolam Package Insert, p. 2). It is a central nervous system depressant and is used as a
preoperative sedative to aid the induction of anesthesia. /d. at p. 13-14. Midazolam is not used as
a sole agent to maintain unconsciousness in painful procedures. The FDA package insert label for
midazolam reports that 5% of adult patients given midazolam reported pain during the intravenous
administration of the drug itself. (Ex. 3, p. 28.) There is also a risk of a paradoxical effect. /d. at p.
16, 26. A paradoxical effect occurs when a drug does not work as intended but has the opposite of
the expected result. In addition, midazolam loses its effectiveness very quickly and as a result (Ex
3, p. 4.) any level of sedation produced by midazolam is rapidly lost leaving the inmate exposed
to the pain from the injection of the next two drugs and the physical reactions they induce. There
is a high likelihood that midazolam will fail to render the condemned inmate insensate to pain or
maintain sedation at a level that ensures the condemned inmate will not feel the intolerable pain
associated with introduction of the paralytic agent and potassium chloride used in ODRC 01-
COM-11
100. Vercuronium bromide (Ex. 4, Vercuronium Package Insert, p. 1), pancuronium bromide
(Ex. 5, Pancuronium Package Insert, p. 1), and rocuronium bromide (Ex. 6, Rocuronium Package
Insert, p. 1), are neuromuscular blocking agents. Each causes severe pain when administered
intravenously. (Ex. 7, “Pharmacological and non-pharmacologial interventions for reducing
rocuronium bromide induced pain on injection in children and adults,” (2016); Ex. 8, “Injection
pain of rocuronium and vercuronium is evoked by direct activation of nocioceptive nerve endings.”
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(2003)). The neuromuscular blocking of these drugs results in paralysis that makes intubation for
surgical procedures possible. This same paralysis stops all voluntary movement by the inmate
during an execution and could cause eventual suffocation caused by the arresting of the inmate’s
respiratory system and the inmate’s consequent inability to satisfy the physiologic and psychologic
urge to breathe, similar to suffocation. By virtue of their paralytic properties, administration of
vercuronium bromide, pancuronium bromide, or rocuronium bromide prohibits the prisoner from
expressing the physical pain and psychological distress he experiences.
101. Potassium chloride (Ex. 9, Potassium Chloride Package Insert) is a drug that induces
cardiac arrest and is the intended agent of death. It too causes severe pain when administered in
the absence of effective anesthesia. Administered intravenously to an un-anesthetized person,
potassium chloride inflicts searing pain as it travels through the circulatory system and into the
lungs and heart. Once it reaches the heart, the potassium chloride, disrupts the heart’s electrical
activity causing excruciatingly painful cardiac arrest and death.
102. The legislature has placed no limit on the drugs that may be used for execution. Nothing
has prevented ODRC from changing drugs again and again and it has done so throughout the many
execution policies it has adopted.
103. By leaving to Defendants the decision as to which drugs quickly and painlessly cause death
and which circumstances constitute a quick and painless death the Ohio General Assembly has
unconstitutionally delegated its legislative authority.
104. By delegating the legislative authority to identify the drugs that can be used in an execution
to ODRC, an executive branch administrative agency, the Ohio General Assembly has violated
Ohio Constitution, Article II, which entrusts the legislative power solely to the Ohio General
Assembly
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Limitations on Access to the Courts and Counsel
105. _ODRC 01-COM-11 limits the inmate’s right to have privileged consultation with his/her
attorney the day before execution and discourages such consultation by (1) imposing undisclosed
special search procedures on defense counsel in order to obtain a privileged consultation with the
condemned inmate, ODRC 01-COM-11, VI. E.7, (2) prohibiting privileged consultation between
the condemned inmate and his/her counsel on the day of execution by allowing only cell front
attorney-client meetings, id., and (3) restricting the inmate’s counsel’s access to telephones to
contact the courts or governor should such a need arise on execution day by allowing counsel
access to only an internal telephone system, that can be used to call to another location in the prison
where a second defense team member must be waiting and will be given access to a telephone that
can be connected to an outside line. /d. at G. 2. a.
106. ODRC 01-COM-11, VI. E.7 permits the condemned inmate “contact visits with family,
friends and/or private clergy, as approved by the Warden, between approximately 4:30 p.m. and
7:30 p.m. on the day prior to the scheduled execution.” There are no special search requirements
for family, friends or private clergy. /d.
107. The attorney-client visit “will take place in an area where conversation is not audible to
ODRC staff. The visit will be visually monitored and recorded on video only.”
108. The right to counsel is guaranteed by art. I, Sec. 10 of the Ohio Constitution and the Sixth
Amendment to the United States Constitution. The right to due process of law and access to the
courts is guaranteed by art. I, Sec. 16 of the Ohio Constitution and the Fourteenth Amendment to
the United States Constitution. The right to equal protection is protected by art. I, Sec. 2 and art.
II, Sec. 26 of the Ohio Constitution and the Fourteenth Amendment to the United States
Constitution.
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109. ODRC has adopted its policy denying and curtailing these rights claiming that the authority
to do so was delegated to it by the Ohio General Assembly in Ohio Rev. Code § 5120.01. Ex. 1,
ODRC 01-COM-11 ,p. 1.
110. The right to due process survives until the inmate’s death. Ohio Adult Parole Authority v.
Woodard, 523 U.S. 372 (1998). The rights to counsel and access to the courts are extant whenever
the need for legal representation or judicial intervention exists. The right to confidential attorney-
client consultation is critical to the concept of due process and confidentiality survives even the
client’s death. Swidler & Berlin v. United States, 524 U.S. 399 (1998). Equal protection requires
that the condemned prisoner be given at least the same access to counsel that is afforded every
other prisoner.
111. Defense counsel have needed to contact the courts during at least three scheduled
executions, Broom, Bedford, and Otte. At least twice impediments imposed by ODRC have
delayed the inmate’s access to the courts.
112. It is the usual circumstance that a condemned inmate has ongoing litigation in the state
and/or federal courts on the day scheduled for execution. Moreover, even if a clemency request is
not pending, the potential need for a clemency request on execution day is present for every inmate.
113. The Ohio General Assembly has issued no policy allowing or guiding ODRC in the
curtailment of these state and federal constitutional rights. Even if rulemaking authority had been
granted, the rules adopted are required to be “reasonable.” Williams v. Spitzer, 122 Ohio St.3d 546,
551, 913 N.E.2d 410,417 (2009). “[I]t is essential to the validity of such rules and regulations that
they be reasonable and neither arbitrary nor discriminatory nor in conflict with the law.” Marz v.
J. L. Curtis Cartage Co., 132 Ohio St. 271, 286, 7 N.E.2d 220 (1937)
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114. No reasonable basis has been identified for subjecting defense counsel to special undefined
search procedures on the day before an execution. No explanation as to why the usual prison search
procedures are inadequate has been offered. No reasonable basis for precluding confidential
attorney-client consultation on the day of execution has been identified.
Cruel and Unusual
115. The Ohio Supreme Court has held that the steps taken to deliver drugs for an execution are
not a part of the punishment of death but rather, are only preparatory steps. State v. Broom, 146
Ohio St. 3d 60, 65-66 (2016).
116. Based on the facts set out in all of the proceeding and subsequent paragraphs, Plaintiff
Jackson respectfully submits that the way in which an execution is carried out, including
“preparatory steps,” may and in the application of ODRC 01-COM-11, does violate the cruel and
unusual prohibitions of both the state and federal constitutions. Ohio Const., art. I, Sec. 9, Eighth
Amendment to the United States Constitution.
Unconstitutional Delegation of Legislative Power and
Violation of the Separation of Powers
117. The separation of powers requires that the legislature make the laws and the executive
branch carry them out. The Ohio General Assembly has violated the separation of powers. It has
placed in the hands of ODRC, an executive branch administrative agency, the unchecked power
to decide what constitutes a lethal injection, use whatever preparatory process including
piercings/cutting/wounding of the prisoner ODRC chooses, to use whatever drug or drugs ODRC
chooses, and to limit constitutionally protected rights to access to counsel and the courts. By
delegating to ODRC the power to define the execution method - changing it from “lethal injection”
to “IV injection” — and there is nothing to prevent further changes — the Ohio General Assembly
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has placed in the hands of the executive branch of government the power to define the law and
carry it out in violation of the doctrine of the separation of powers.
PRAYER FOR RELIEF
Pursuant to Ohio Rev. Code § 2721.02, Plaintiff Jackson prays this court declare their rights, status
and other legal relations under ODRC 01-COM-11 and declare that:
1) ODRC 01-COM-11 is unconstitutional on all bases alleged herein including that it was
adopted in violation of the separation of powers, violates Plaintiff Jackson’s rights to due process
of law, equal protection of the law, access to counsel and the courts;
2) ODRC 01-COM-11 was adopted by Defendants without complying with the requirements
of Ohio Rev. Code § 111.15 and thus is void and cannot be applied to Plaintiff Jackson;
3) Ohio Rev. Code § 5120.01 did not delegate to Defendants the authority to adopt ODRC
01-COM-11;
4) Applying ODRC 01-COM-11 to Plaintiff Jackson will deny his rights to be subjected only
to legally adopted execution procedures and thus will deny his rights to due process and equal
protection;
5) The adoption of ODRC 01-COM-11 exceeded any rulemaking authority granted to
Defendants under Ohio Rev. Code 5120.01 and was an unconstitutional usurpation of legislative
power;
6) Delegation of the unguided authority to adopt and carry out ODRC 01-COM-11 was an
unconstitutional delegation of legislative authority;
7) Plaintiff Jackson may not be executed under ODRC 01-COM-11 and Defendants are
enjoined from doing so;
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8) ODRC and the Director lack the authority necessary to promulgate rules regarding
executions and permanently enjoin ODRC and the Director from enacting execution protocols in
the future;
9) If the Court finds that either the Director or ODRC has the authority to promulgate rules
regarding executions, Plaintiff Jackson asks that:
a.
b.
The Court find that ODRC has to comply with Ohio Rev. Code § 111.15 legislative
review and filing requirements.
Because ODRC failed to comply with these requirements, Plaintiff Jackson asks
that the Court find 01-COM-11 effective October 7, 2016 an invalidly enacted rule.
The Court enjoin ODRC and the Dire
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N71 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO CIVIL DIVISION JAMES D. O’NEAL, et. al., PLAINTIFFS, vs. : CASE No. 18CV-758 THE STATE OF OHIO, et. al., : JUDGE SERROTT DEFENDANTS. CLEVELAND JACKSON’S COMPLAINT SEEKING DECLARATORY JUDGMENT NATURE OF ACTION 1 This is an action under Ohio Rev. Code § 2721.03 seeking a declaratory judgment and injunctive relief to determine and enforce the rights of Plaintiff Cleveland Jackson not to be subjected to execution procedures, currently designated by the Ohio Department of Rehabilitation and Correction Communication Policy 01-COM-11 (eff. Oct. 7, 2016) (attached as Exhibit 1 and available at www.drc.ohio.gov/policies/communications) (hereinafter ODRC 01-COM-11), that Defendants intend to use to carry out Plaintiff’s death sentence, when those procedures were adopted by Defendants without complying with the requirements of Ohio Rev. Code § 111.15 for the adoption of administrative rules, (2) were adopted through the executive-branch Defendants’ unconstitutional usurpation of state legislative power, and/or (3) were adopted through the Ohio General Assembly’s unconstitutional delegation of legislative power. 2. Plaintiff Jackson further seeks declaratory judgment and relief to determine and enforce their substantive and procedural due process rights under Ohio Rev. Code Chapter 111 and the Ohio and United States Constitutions as related to Defendants’ adoption of and intention to useFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N72 administrative rules for carrying out his death sentences when those rules were adopted without complying with the Ohio Rev. Code § 111.15. JURISDICTION AND VENUE 3 The jurisdiction of this Court is invoked pursuant to Ohio Rev. Code § 2721.03. 4. Venue is proper for this Court under Ohio Civil Rule 3(B)(4), as Franklin County is the county in which Defendants maintain their principal offices. 5. There is a justiciable controversy between the parties. Plaintiff Jackson is sentenced to death and Defendants intend to carry out their executions using the procedures set out in ODRC O1-COM-11. Plaintiff contends that ODRC 01-COM-11 is void and based on an unconstitutional usurpation of legislative power or an unconstitutional delegation of legislative power. The executive branch Defendants have represented that they were delegated authority to adopt ODRC Ol-COM-11 under Ohio Rev. Code § 5120.01 6 This case involves the procedures under ODRC 01-COM-11 that will be used to carry out Plaintiff Jackson’s death sentence. The United States Supreme Court has recognized that “death is different,” Kurman v. Georgia, 408 U.S. 238, 286-89 (1972) (Brennan, J., concurring) (“[dJeath is a unique punishment”; “[dJeath ... is in a class by itself”); id. at 306 (Stewart, J., concurring) (“penalty of death differs from all other forms of criminal punishment, not in degree but in kind”); Gregg v. Georgia, 428 U.S. 153, 188 (1976) (Joint opinion Stewart, Powell, and Stevens, JJ.) (“death is different in kind from any other punishment”); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (Joint opinion of Stewart, Powell, and Stevens, JJ.) (“penalty of death is qualitatively different from a sentence of imprisonment, however long”); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (“qualitatively different”). As a result of this fact, litigation in such cases is often lengthy and typically includes multiple levels of review. This is a process that can take severalFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N73 years. And, if Plaintiff Jackson prevails, additional time will be needed for legal and constitutional rulemaking and legislative actions to be completed. “[T]his is a case where the impact on the plaintiffs is sufficiently direct and immediate to render the issues appropriate for judicial review.” Burger Brewing Co. v Liquor Control Comm., 34 Ohio St.2d 93, 98, 296 N.E.2d 261, 265 (1973). 7. The nature of the rule at issue, ODRC-01-COM-11, is such that Plaintiff cannot wait until it is used against him to seek a determination of its validity because, in most cases, once ODRC 01-COM-11 is applied the Plaintiff will be dead. PARTIES 8. Plaintiff Cleveland Jackson is an inmate in the custody of the State of Ohio who has been sentenced to death. His execution is scheduled for September 13, 2018. 9. [RESERVED BLANK]. 10. Defendant the State of Ohio is a state of the United States of America and is the government entity in whose name Plaintiff Jackson was sentenced to death. The State of Ohio holds Plaintiff Jackson in its custody, and intends to execute Plaintiff Jackson using ODRC 01-COM-11. The State of Ohio includes the executive, legislative, and judicial branches of government. Ohio Constitution, art. II, III, IV. Actions of both the executive and legislative branches are involved in this lawsuit. The Ohio Attorney General acts as counsel for the state and its various components and receives service for the same. Ohio Rev. Code § 109.02; Ohio R. Civ. Pro. 4.2(K) 11. Defendant Ohio Department of Rehabilitation and Correction (hereinafter ODRC) is a department of the executive branch. Ohio Rev. Code § 121.02(P). 12. Defendant ODRC, under the direction of Director Gary Mohr, was in charge of the adoption of ODRC 01-COM-11 and intends to oversee its use and implementation in the executions of Plaintiff JacksonFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N74 FACTUAL ALLEGATIONS 13. Plaintiff Jackson, and the other plaintiffs, are currently under sentence of death in the State of Ohio and is in the custody of Defendant State of Ohio 14. Under the present circumstances, Plaintiff Jackson will be subjected to the procedures set out in ODRC 01-COM-11 as the protocol for his execution. 15. | ODRC 01-COM-11 became effective on October 7, 2016 and bears a signature indicating that it was approved by ODRC Director Gary Mohr. (Ex. 1, p. 1). 16. | ODRC 01-COM-11 states “This policy is issued in compliance with Ohio Revised Code § 5120.01 which delegates to the Director of the Department of Rehabilitation and Correction the authority to manage and direct the total operations of the Department and to establish such rules and regulations as the Director prescribes.” (Ex. 1, p. 1). 17. There have been 20 versions of Ohio’s Execution Protocol, with each subsequent policy superseding the previous policy. The following are the effective dates of each version (and its ODRC Policy number): . March 30, 1994 (Sec. 1, No. 9) . April 12, 2001 (Sec. 1, No. 9) . August 21, 2001 (Sec. 1, No. 9) . September 11, 2001 (Sec. 1, No. 9) . November 21, 2001 (Sec. 1, No. 9) . July 17, 2003 (Sec. 1, No. 9) . January 8, 2004 (01-COM-11) . July 10, 2006 (01-COM-11) . October 11, 2006 (01-COM-11)Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N75 . May 14, 2009 (01-COM-11) . November 30, 2009 (01-COM-11) . November 15, 2010 (01-COM-11) . March 9, 2011 (01-COM-11) . April 11, 2011 (01-COM-11) . September 18, 2011 (01-COM-11) . October 10, 2013 (01-COM-11) . April 28, 2014 (01-COM-11) . January 9, 2015 (01-COM-11) . June 29, 2015 (01-COM-11) . October 7, 2016 (01-COM-11) 18. All have been enacted by ODRC as policies. ODRC Director Mohr testified that he does not know why ODRC has not complied with Ohio’s administrative rule making requirements, or how it was decided not to follow those requirements, in enacting the current and past execution protocols. (Ex. 2, Mohr Depo., p. 142-43.) 19. Ohio Rev. Code § 5120.01 states: The director of rehabilitation and correction is the executive head of the department of rehabilitation and correction. All duties conferred on the various divisions and institutions of the department by law or by order of the director shall be performed under the rules and regulations that the director prescribes and shall be under the director’s control. Inmates committed to the department of rehabilitation and correction shall be under the legal custody of the director or the director’s designee, and the director or the director’s designee shall have power to control transfers of inmates between the several state institutions included under section 5120.05 of the Revised Code. 20. Ohio Rev. Code § 5120.42 states: The department of rehabilitation and correction shall make rules for the proper execution of its powers and may require the performance of additional duties by theFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N76 officers of the several institutions, so as to fully meet the requirements, intents, and purposes of Chapter 5120 of the Revised Code, and particularly those relating to making estimates and furnishing proper proof of the use made of all articles furnished or produced in such institutions. In case of an apparent conflict between the powers conferred upon any managing officer and those conferred by such sections upon the department, the presumption shall be conclusive in favor of the department. 21. Ohio Rev. Code § 2949.22(A) states Except as provided in division (C) of this section, a death sentence shall be executed by causing the application to the person, upon whom the sentence was imposed, of a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death. The application of the drug or combination of drugs shall be continued until the person is dead. The warden of the correctional institution in which the sentence is to be executed or another person selected by the director of rehabilitation and correction shall ensure that the death sentence is executed. 22. The Ohio Supreme Court has held that an execution under Ohio Rev. Code § 2949.22(A) does not begin until drugs begin to flow into the condemned prisoner’s body. State v. Broom, 146 Ohio St. 3d 60, 65-66 (2016) (“As the statute makes clear, the execution commences when the lethal drug enters the IV line.”). 23. The Ohio Supreme Court has affirmed that the legislative policy in Ohio Rev. Code § 2949.22(A) requiring that the inmate’s death be quick and painless applies only once the execution drugs begin to flow into the inmate’s body and not to the process used to introduce the drugs into the inmate. “The statute facially requires the state to use an amount of drugs sufficient to cause a quick and painless death but does not require the same for the entire process.” State v. Broom, 2012-Ohio-587, 55, (8th Dist.) (February 16, 2012), aff'd, 146 Ohio St. 3d 60, 65-66 (2016) (emphasis added)Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N77 24. Defendants state in ODRC 01-COM-11 that they are delegated by Ohio Rev. Code § 5120.01 the legislative authority to create the rules governing the entire execution process from preparation to conclusion. (Ex. 1, ODRC 01-COM-11, p.1.) 25. As a governmental entity created by statute, Ohio Rev. Code § 121.02(P), the Ohio Department of Rehabilitation and Correction is an agency of the State of Ohio. Ohio Rev. Code § 111.15(A)(2) (“‘[a]gency’ means any governmental entity of the state and includes... any. . department.”) CLAIMS FOR RELIEF FIRST CLAIM: ODRC 01-COM-11 Is an Invalidly Adopted Rule 26. Plaintiff Jackson incorporates by reference all previous and subsequent statements and allegations as if fully re-written in this claim 27. It is Plaintiff Jackson’s claim, as set out below, that Defendants have not been and cannot be delegated rule making authority to enact ODRC 01-COM-11, but that if such delegation has been legally and constitutionally made, Defendants have failed to validly and legally adopt ODRC- 01-COM-11 28 The Director of the ODRC is empowered to make rules and regulations in aid of “[a]ll duties conferred on the various divisions and institutions of the department by law or by order of the director.” Ohio Rev. Code § 5120.01. 29. There is no language in Ohio Rev. Code § 5120.01 that exempts the Director or the Department from Ohio’s administrative rulemaking procedures 30. | Ohio Rev. Code § 111.15(B) sets out the procedures for the adoption of administrative tules by state agencies that are not governed by other statutory administrative rule making proceduresFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N78 31 No language in Ohio Rev. Code § 111.15 generally or § 111.15(B) particularly exempts the ODRC from compliance with its rule making requirements. 32. ODRC 01-COM-11 is a rule within the meaning of Ohio Rev. Code § 111.15 (A)(1) “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. “Rule” does not include any guideline adopted pursuant to section 3301.0714 of the Revised Code, any order respecting the duties of employees, any finding, any determination of a question of law or fact in a matter presented to an agency, or any rule promulgated pursuant to Chapter 119. or division (C)(1) or (2) of section 5117.02 of the Revised Code. “Rule” includes any amendment or rescission of a rule. 33 Ohio courts have held that a rule 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 Mental Retardation & Developmental Disabilities v. Pub. Emp. Ret. Sys., 61 Ohio Misc. 2d 836, 843 (Com. PI. 1990); see also B&T Express, Inc. v. Pub. Util. Comm., 145 Ohio App.3d 656, 763 N.E.2d 1241 (10th Dist. 2001). 34. By its language, ODRC 01-COM-11 applies uniformly to all Ohio prisoners to be executed by the State of Ohio. (Ex. 1, p.1). 35 Defendants admit that ODRC 01-COM-11 applies uniformly to all Ohio prisoners to be executed by the State of Ohio. (Ex. 2, Deposition of Gary Mohr, p. 141-42.) 36. Ohio Rev. Code § 111. 1(B)(1) requires that “[a]ny rule, other than a rule of an emergency nature,” in its final form, be “filed in electronic form with both the secretary of state and the director of the legislative service commission” and “with the joint committee on agency rule review.” 37. Ohio Rev. Code§ 111.15(B)(1) specifies that a rule becomes effective “on the tenth day after the day on which the rule” was properly filedFranklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N79 38 ODRC failed to file ODRC 01-COM-11 in electronic or any form with the secretary of state, the director of the legislative service commission, or the joint committee on agency rule review (JCARR). 39. | ODRC 01-COM-11 is not a rule of an emergency nature. 40. Ohio Rev. Code § 111.15 defines “rule of an emergency nature” as one “necessary for the immediate preservation of the public peace, health, or safety.” It also requires that an emergency tule “state the reasons for the necessity.” An emergency rule becomes invalid at the end of the one hundred twentieth day it is in effect. See Ohio Rev. Code § 111.15(B)(2). 41 Although an emergency rule need not go through legislative review, it still must “be filed in electronic form with the secretary of state, the director of the legislative service commission, and the joint committee on agency rule review.” /d. 42. ODRC 01-COM-11 does not purport to have been necessary for the immediate preservation of the public peace, health, or safety. (Ex. 1, passim). 43 Had ODRC 01-COM-11 been a rule of an emergency nature it would have expired in February 2017, on the one hundred and twentieth day after its identified effective date of October 7, 2016. Ohio Rev. Code § 111.15(B)(2); (Ex. 1, p.1.) 44. Ohio Rev. Code § 111.15(D) requires that, at least 65 days before any department files a tule under division (B)(1), “it shall file the full text of the proposed rule in electronic form with the joint committee on agency rule review, and the proposed rule is subject to legislative review and invalidation under section 106.021 of the Revised Code.” 45. ODRC failed to submit ODRC 01-COM-11 for legislative review by filing it with the joint committee on agency rule review 65 days in advance.Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N80 46. The legislative review requirement does not apply to an internal management rule. Ohio Rev. Code § 111.15(D)(4). 47. ODRC 01-COM-11 is not an internal management rule. 48. Ohio Rev. Code § 111.15(A)(3) provides: “‘Internal management rule’ means any rule, regulation, bylaw, or standard governing the day-to-day staff procedures and operations within an agency.” Executions are not day-to-day staff procedures. Executions are of such “uniqueness” and “of such inapplicability to the general operations of the ODRC that the ODRC rule (ODRC 01- COM-01. VI. B. 1.) encouraging all staff to participate is ignored and, according to Director Mohr, “would not be, in my opinion, applicable in the case of the execution policy.” Ex. 2, p. 131-32. Director Mohr also acknowledged that those with an interest in ODRC 01-COM-11, Ohio’s execution protocol, include the general public and those subject to execution. Ex. 2, p. 136. 49. Even if ODRC 01-COM-11 could reasonably be viewed as an internal management rule, it would still, as required by Ohio Rev. Code § 111.15(B), have to have been filed in electronic form with the secretary of state, the director of the legislative service commission, and the Joint Committee on Agency Rule Review (hereinafter JCARR). It was not. 50. Ohio courts require strict adherence to the filing requirements of Ohio Rev. Code § 111.15. The Tenth District Court of Appeals reasoned that “[o]ne of the primary purposes behind the filing requirements set forth in R.C. 111.15(B)(1) and (D) is to provide JCARR with an opportunity to review the substantive portions of new rules to determine whether the rules exceed the scope of the adopting agency’s authority, conflict with other rules, or conflict with the legislative intent of the statute pursuant to which the rules are being adopted.” B&T Express, Inc. v. Pub. Util. Comm., 145 Ohio App. 3d 656, 665, 763 N.E.2d 1241, 1249 (10th Dist. 2001). 10Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N81 51 Ohio courts do not hesitate to invalidate the rules when an agency failed to comply with these requirements in the enactment of the rules at issue. In State ex rel. Bd. of Edn. of N. Canton Exempted Village School Dist. v. Holt, 174 Ohio St. 55, 57, 186 N.E.2d 862, 863 (1962), the Ohio Supreme Court held that a rule adopted by the Ohio School Employees Retirement Board was invalid because the rule had not been filed as required by Ohio Rev. Code § 111.15 52. Because ODRC failed to comply with the review and filing requirements of Ohio Rev. Code § 111.15, ODRC 01-COM-11 is an invalidly adopted rule and is therefore void. 53. Subjecting Plaintiff Jackson to execution under this void procedure will deny him due process of law as guaranteed by the Ohio Constitution, art. I, Sec. 2 and the Fourteenth Amendment to the United States Constitution, SECOND CLAIM: Enacting the Execution Protocol Exceeded the Scope of the Rule Making Authority Delegated Under Ohio Rev. Code § 5120.01 to ODRC and the Director of ODRC and Unconstitutionally Usurped Legislative Powers. 54. Plaintiff Jackson incorporates by reference all previous and subsequent statements and allegations as if fully re-written in this claim 55. An administrative agency has only such regulatory power as is delegated to it by the General Assembly. Authority that is conferred by the General Assembly cannot be extended by an administrative agency 56. The Ohio Supreme Court has held that “the intention of the grant of power, as well as the extent of the grant, must be clear; that in case of doubt that doubt is to be resolved not in favor of the grant but against it.” State ex rel. A. Bentley & Sons Co. v. Pierce, 96 Ohio St. 44, 47, 117 N.E. 6, 7 (1917). 57. The Ohio Supreme Court has found, where the legislature did not grant an agency authority to promulgate certain regulations, the agency exceeded its rule-making authority and usurped the 11Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N82 legislative power of the General Assembly when it engaged in rule-making. See, e.g., D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St. 3d 250, 260, 773 N.E.2d 536, 546 (2002). 58 Ohio Rev. Code § 5120.01 authorizes the ODRC director to prescribe rules under which the “duties conferred on the various divisions and institutions of the department by law or by order of the director” shall be performed and Defendants state that ODRC 01-COM-11 is enacted pursuant to their authority under Ohio Rev. Code § 5120.01. Ex. 1, p.1 59. Ohio Rev. Code Chapter 5120 confers no duties on “divisions and institutions of the department” regarding carrying out death sentences. 60. The duty to carry out the death penalty is not delegated to a division or institution of the department. 61 Ohio Rev. Code § 2949.22(A) confers on the individual warden in charge of the prison in which the execution will be carried out, or another person designated by the ODRC director, the duty to ensure that the death sentence is carried out. 62. Ohio Rev. Code § 2949.22(B) requires that the execution itself be carried out “under the direction of the warden . . . [or] deputy warden.” 63 Ohio Rev. Code § 2949.24 permits only the warden to make the return “to the clerk of the court of common pleas of the county immediately from which the prisoner was sentenced of the manner of the execution of the warrant.” 64. The legislature did not grant ODRC or its director the power to promulgate rules regarding executions. ODRC 01-COM-11 is therefore void. 65. | ODRC and ODRC’s director exceeded the scope of its rule-making authority under Ohio Rev. Code § 5120.01 when it enacted ODRC 01-COM-11. The execution protocol ODRC 01- COM-11 is therefore void. 12Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N83 66. Subjecting Plaintiff Jackson to execution under this void procedure will deny him due process of law as guaranteed by the Ohio Constitution, art. I, Sec. 2 and the Fourteenth Amendment to the United States Constitution. THIRD CLAIM: Defendant the State of Ohio, Legislative Branch, Unconstitutionally Delegated its Legislative Power to the Executive Branch Defendants. 67. Plaintiff Jackson incorporates by reference all previous and subsequent statements and allegations as if fully re-written in this claim 68. The Ohio General Assembly did not intend to delegate the powers to Defendants that Defendants have exercised in the adoption of ODRC 01-COM-11. If such delegation was intended, it was an unconstitutional delegation of legislative authority and a violation of the separation of powers 69. Under the Ohio Constitution, all legislative power is delegated by the people to the Ohio General Assembly. Ohio Constitution, art. II, Sec. 1. Matz. v. J.L. Curtis Cartage Co., 132 Ohio St. 271, 279, 7 N.E.2d 220, 224-25 (1937). 70. In the exercise of its lawmaking power the Ohio General Assembly is the “ultimate arbiter of public policy.” Arbino v. Johnson, 116 Ohio St. 3d 468, 472, 880 N.E.2d 420, 428 (2007). 71. The legislature cannot delegate its lawmaking authority It is a maxim in constitutional law that power conferred by a Constitution upon a Legislature to make laws cannot be delegated by such body to any other body or authority, unless the authority to so delegate is given by the Constitution itself, either expressly or by implication. The legislative prerogative is one which involves judgment, wisdom, and discretion of a high order, and the trust thus imposed cannot be shifted to other shoulders; neither can the judgment and discretion of any other body be substituted for that of the Legislature itself. State ex rel. Bryant vy. Akron Metropolitan Park Dist., 120 Ohio St. 464, 478, 166 N.E. 407 (1929). 72. The legislative power is broad and encompasses regulation of actions “in violation of social duties or subversive of good order.” State v. Marble, 72 Ohio St. 21, 32, 73 N.E. 1063 (1905) 13Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N84 (quoting Reynolds v. United States, 98 U.S. 145, 164 (1879)); State v. Stouffer, 28 Ohio App. 2d 229, 232, 276 N.E.2d 651 (10th Dist. 1971). In the exercise of such power various burdens are imposed: Criminals are deprived of their liberty; the implements of crime are destroyed; vice and pauperism are controlled; noxious trades are regulated; nuisances are suppressed; children are required to attend school; the property of infants and persons non compos is placed in the control of others; the construction of buildings in populous neighborhoods is regulated; provision is made for the greater safety of passengers upon railways and steamboats; employers are required to provide safe places in which the work of their employees is to be performed; the hours of work, in employments deleterious to the health, limited; the employment of children in factories prohibited; pure food laws are enacted; physicians, dentists, and druggists are licensed; and so the list might be almost indefinitely extended by specific instances of authorized legislative regulations, enforcing the social compact, for the protection of life, health, morals, property, and the general weal of the community. Marble, 72 Ohio St. at 32-33 (citing Parks v. State, 159 Ind., 211, 220, 64 N.E. 862, 866, (1902)) 73. The exercise of legislative power is subject to the state and federal constitutional limitations of due process and equal protection. Marble, 72 Ohio St. at 33-34 74. Defendants claim that they were delegated the authority to adopt ODRC 01-COM-11 under Ohio Rev. Code § 5120.01. Ex. 1., p.1 [A] statute does not unconstitutionally delegate legislative power if it establishes, through legislative policy and such standards as are practical, an intelligible principle to which the administrative officer or body must conform and further establishes a procedure whereby exercise of the discretion can be reviewed effectively. Blue Cross of Northeast Ohio v. Ratchford, 64 Ohio St. 2d 256, 260, 416 N.E.2d 614, 618 (1980). 75. Ohio Rev. Code § 5120.01 does not establish legislative policy or set any standards regarding execution procedures, it identifies no intelligible principle to which Defendants must conform, and it establishes no procedure for effective review of execution procedures. 14Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0OE236 - N85 76. By leaving to the discretion of the Defendant ODRC the determination of the policies and decisions that (a) define lethal injection, (b) dictate the process by which lethal drugs are administered to the condemned inmate, (c) determine the number and type of piercings, needle jabs, or cuts that can be made on the condemned inmate’ s body in order to carry out his execution, (d) identify the “drug or combination of drugs” to be used in a lethal injection, (e) preclude the condemned inmate’s access to confidential attorney client communication on the day of execution and severely limit it on the day before, and (f) restrict access to the courts, the Ohio General Assembly has unconstitutionally delegated its legislative power to the ODRC. Executive Branch ODRC has been allowed to define “Lethal Injection” 77. The phrase “lethal injection” in Ohio Rev. Code § 2949.22 is not defined. The common and ordinary meaning of “inject” at the time Ohio Rev. Code § 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 “injection” meant “1 an act or instance of injecting.” WEBSTER’ S NEW WORLD COLLEGE DICTIONARY, 4th Ed., World Wide Books, Inc. (2001) p. 735 78 Under the rules of statutory construction this common meaning is the statutory meaning. Thus a lethal injection as contemplated under Ohio Rev. Code § 2949.22 is a direct injection into the inmate’s body of a lethal drug or drugs that will cause a quick and painless death. 79. | ODRC 01-COM-11 adopts a procedure in which intravenous catheters are to be inserted into the inmate’s body. To those catheters may be attached a heparin lock, a saline drip, and/or intravenous tubing. ODRC 01-COM-11 VI. G.7. and 8. Under ODRC 01-COM-11, lethal drugs will be administered by “IV injection” meaning injection into intravenous tubing using one of 15Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 OE236 - N86 several drugs or combinations of drugs. ODRC 01-COM-11 VI. H. ODRC under ODRC 01-COM- 11 is not carrying out “lethal injection” as contemplated by the statutory language. 80. By defining lethal injection to mean “IV injection” ODRC has changed what was to be an uncomplicated injection into a lengthy and complex process that has resulted in painful and failed executions. See, e.g., execution of Joseph Clark on May 2, 2006; Christopher Newton on May 24, 2007; and attempted executions of Romell Broom on September 15, 2009; Alva Campbell on November 15, 2017; see also Reynolds v. Strickland, 583 F.3d 956, 957 (6th Cir. 2009) (noting Ohio has “experienced serious and troubling difficulties in executing at least three inmates, most recently Romell Broom”), State v. Broom, 146 Ohio St. 3d 60, 61-63 (2016), Liam Stack, “Execution in Ohio Is Halted After No Usable Vein Can Be Found,” N.Y. Times, https://www.nytimes.com/2017/11/15/us/ohio-execution-alva-campbell.html 81. Defining crimes and penalties is a legislative power. State v. Gonzales, 150 Ohio St. 3d 276, 278, 81 N.E.3d 419 (2017); see also State v. Marble, 72 Ohio St. 21, 32, 73 N.E. 1063 (1905). Executive Branch ODRC has been delegated unchecked authority to decide how much pain will be inflicted on the condemned inmate in preparation for execution 82. ODRC 01-COM-11 does not limit the ways in which intravenous sites may be established The current ODRC 01-COM-11 leaves it entirely up to the execution team and warden what methods will be used to pierce, puncture, or cut into the condemned inmate’s veins. ODRC 01- COM-IIG.7.b., c., and d. 83 The injuries inflicted under ODRC 01-COM-11 to establish intravenous access are prohibited by existing law. The piercing/cutting/wounding done to the condemned inmate in preparation for execution constitute assault and/or battery. Ohio Rev. Code § 2903.01 (assault). A “person is subject to liability for battery when he acts intending to cause a harmful or offensive contact, and when a harmful contact results.” Love v. City of Port Clinton, 37 Ohio St.3d 98, 99, 16Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N87 524 N.E.2d 166 (1988) (officer subduing and handcuffing is battery unless privileged); Stafford v. Columbus Bonding Ctr., 177 Ohio App.3d 799, 810, 896 N.E.2d 191, 200 (Ohio Ct. App. 2008); Harris v. United States, 422 F.3d 322, 330 (6th Cir. 2005). 84. Only the Ohio General Assembly can change the Ohio law prohibiting assault. Only the Ohio General Assembly can set the policy and define the parameters of the piercing/cutting/ wounding of the condemned prisoner that will be allowed as preparatory steps to carrying out an execution. There is No Legislative Policy to Guide the Executive Branch Regarding the Process Required to Carry Out an Execution 85. When the legislature determines the policy and law, it can, by providing appropriate guidance, authorize an executive branch agency to implement the law and policy. D.A.B.E., Inc. vy. Toledo-Lucas County Bd. of Health, 2002 Ohio 4172, 96 Ohio St. 3d 250, 773 N.E.2d 536 (Ohio 2002) 86. The Legislature has provided no guidance or policy for the preparatory steps of carrying out an execution by lethal injection. 87. The Ohio Supreme Court has held that an execution under Ohio Rev. Code § 2949.22(A) does not begin until drugs begin to flow into the condemned prisoner’s body. State v. Broom, 146 Ohio St. 3d 60, 66 (2016) (“As the statute makes clear, the execution commences when the lethal drug enters the IV.”) 88 The Ohio Supreme Court has affirmed that the legislative policy in Ohio Rev. Code § 2949.22(A) requiring that the inmate’s death be quick and painless applies only once the execution drugs begin to flow into the inmate’s body and not to the process used to introduce the drugs into the inmate. “The statute facially requires the state to use an amount of drugs sufficient 17Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N88 to cause a quick and painless death but does not require the same for the entire process.” State v. Broom, 2012-0hio-587, § 55, (8th Dist., Feb. 16, 2012), aff'd, 146 Ohio St. 3d 60, 65-66 (2016) 89. The legislative authority to use death as a penalty for crime is the greatest exercise of power against an individual that can be exercised by the state. The extinguishment of life is the extinguishment of all rights. But second only to inflicting death is the infliction of physical harm Physical harm cannot be inflicted legally without legislative authorization. See Ohio Rev. Code § 2903.01; Love v. City of Port Clinton, 37 Ohio St. 3d 98, 99, 524 N.E.2d 166 (1988). The legislative decision to pierce/cut/wound the condemned prisoner and the parameters of such piercing/cutting/wounding that will be allowed in preparation for execution cannot be delegated. 90. Plaintiff Jackson has a liberty interest, protected by both the state and federal constitutions, in not being subjected to physical injuries that are not part of the punishment of execution. Ohio Constitution, art. I, Sec. II; Fourteenth Amendment to the United States Constitution. 91. Unlike past methods of execution used in Ohio — hanging and electrocution — where the preparatory steps required only that the condemned prisoner be placed in the execution device without the necessity of injuring him/her before the execution began, lethal injection preparation as conceived by the executive branch defendants and confirmed by the Ohio Supreme Court requires that the physical injury of piercing/cutting/wounding the condemned prisoner take place before the execution begins. State v. Broom, 146 Ohio St. 3d at 65-66 (2016). 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 General Code, Part Fourth, Ch. 35, §13456-2 (1938)). 18Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N89 92. In the absence of either legislative policy or guidance, Defendants have taken over the legislative function and granted themselves the authority (1) to make an unlimited number of piercings/cuts/wounds in the effort to create an opening in the condemned inmate’s body through which lethal drugs can be introduced (ODRC 01-COM-11, VI. G. 8. ¢. and d.), (2) to make piercings/cuts/wounds any place on the condemned inmate’s body (ODRC 01-COM-11, VI. G. 7.b. ii; H. 2. d.), and (3) to do so over an unlimited time period (ODRC 01-COM-11, VL G. 7.b.). 93 The legislature cannot delegate to the executive branch this unchecked, unguided, discretionary authority. Blue Cross of Northeast Ohio v. Ratchford, 64 Ohio St. 2d 256, 259-60, 416 N.E.2d 614, 617-18 (1980). 94. Administrative regulations cannot dictate public policy but rather can only administer policy already established by the General Assembly: D.A.B.E., Inc. v. Toledo-Lucas County Bd. of Health, 96 Ohio St. 3d 250, 2002-Ohio-4172, 773 N.E.2d 536, at syl. 2 Choice of Drugs is Legislative 95 The legislature failed to provide adequate guidance and policy regarding the choice of drugs to be used in Ohio lethal injection executions. Ohio Rev. Code § 2949.22 requires only that drugs “of sufficient dosage to quickly and painlessly cause death” be used. 96. Defendants have chosen drugs that (1) they know are unavailable, and/or (2) they know will cause pam. 97. | ODRC 01-COM-11 lists pentobarbital and thiopental sodium (barbiturates) as possible single drug execution methods. However, ODRC has represented that these drugs are not legally available to the ODRC and thus they are not currently in use. (Ex. 2, Mohr Deposition. p. 139.) 19Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N90 98 As a result, ODRC currently uses a three-drug combination of midazolam hydrochloride (Ex. 3) and one of the following three drugs: vecuronium bromide (Ex. 4), pancuronium bromide (Ex. 5), or rocuronium bromide (Ex. 6), plus potassium chloride. (Ex. 7) 99. Midazolam hydrochloride is a member of the benzodiazepine class of drugs. (Ex. 3, Midazolam Package Insert, p. 2). It is a central nervous system depressant and is used as a preoperative sedative to aid the induction of anesthesia. /d. at p. 13-14. Midazolam is not used as a sole agent to maintain unconsciousness in painful procedures. The FDA package insert label for midazolam reports that 5% of adult patients given midazolam reported pain during the intravenous administration of the drug itself. (Ex. 3, p. 28.) There is also a risk of a paradoxical effect. /d. at p. 16, 26. A paradoxical effect occurs when a drug does not work as intended but has the opposite of the expected result. In addition, midazolam loses its effectiveness very quickly and as a result (Ex 3, p. 4.) any level of sedation produced by midazolam is rapidly lost leaving the inmate exposed to the pain from the injection of the next two drugs and the physical reactions they induce. There is a high likelihood that midazolam will fail to render the condemned inmate insensate to pain or maintain sedation at a level that ensures the condemned inmate will not feel the intolerable pain associated with introduction of the paralytic agent and potassium chloride used in ODRC 01- COM-11 100. Vercuronium bromide (Ex. 4, Vercuronium Package Insert, p. 1), pancuronium bromide (Ex. 5, Pancuronium Package Insert, p. 1), and rocuronium bromide (Ex. 6, Rocuronium Package Insert, p. 1), are neuromuscular blocking agents. Each causes severe pain when administered intravenously. (Ex. 7, “Pharmacological and non-pharmacologial interventions for reducing rocuronium bromide induced pain on injection in children and adults,” (2016); Ex. 8, “Injection pain of rocuronium and vercuronium is evoked by direct activation of nocioceptive nerve endings.” 20Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N91 (2003)). The neuromuscular blocking of these drugs results in paralysis that makes intubation for surgical procedures possible. This same paralysis stops all voluntary movement by the inmate during an execution and could cause eventual suffocation caused by the arresting of the inmate’s respiratory system and the inmate’s consequent inability to satisfy the physiologic and psychologic urge to breathe, similar to suffocation. By virtue of their paralytic properties, administration of vercuronium bromide, pancuronium bromide, or rocuronium bromide prohibits the prisoner from expressing the physical pain and psychological distress he experiences. 101. Potassium chloride (Ex. 9, Potassium Chloride Package Insert) is a drug that induces cardiac arrest and is the intended agent of death. It too causes severe pain when administered in the absence of effective anesthesia. Administered intravenously to an un-anesthetized person, potassium chloride inflicts searing pain as it travels through the circulatory system and into the lungs and heart. Once it reaches the heart, the potassium chloride, disrupts the heart’s electrical activity causing excruciatingly painful cardiac arrest and death. 102. The legislature has placed no limit on the drugs that may be used for execution. Nothing has prevented ODRC from changing drugs again and again and it has done so throughout the many execution policies it has adopted. 103. By leaving to Defendants the decision as to which drugs quickly and painlessly cause death and which circumstances constitute a quick and painless death the Ohio General Assembly has unconstitutionally delegated its legislative authority. 104. By delegating the legislative authority to identify the drugs that can be used in an execution to ODRC, an executive branch administrative agency, the Ohio General Assembly has violated Ohio Constitution, Article II, which entrusts the legislative power solely to the Ohio General Assembly 21Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N92 Limitations on Access to the Courts and Counsel 105. _ODRC 01-COM-11 limits the inmate’s right to have privileged consultation with his/her attorney the day before execution and discourages such consultation by (1) imposing undisclosed special search procedures on defense counsel in order to obtain a privileged consultation with the condemned inmate, ODRC 01-COM-11, VI. E.7, (2) prohibiting privileged consultation between the condemned inmate and his/her counsel on the day of execution by allowing only cell front attorney-client meetings, id., and (3) restricting the inmate’s counsel’s access to telephones to contact the courts or governor should such a need arise on execution day by allowing counsel access to only an internal telephone system, that can be used to call to another location in the prison where a second defense team member must be waiting and will be given access to a telephone that can be connected to an outside line. /d. at G. 2. a. 106. ODRC 01-COM-11, VI. E.7 permits the condemned inmate “contact visits with family, friends and/or private clergy, as approved by the Warden, between approximately 4:30 p.m. and 7:30 p.m. on the day prior to the scheduled execution.” There are no special search requirements for family, friends or private clergy. /d. 107. The attorney-client visit “will take place in an area where conversation is not audible to ODRC staff. The visit will be visually monitored and recorded on video only.” 108. The right to counsel is guaranteed by art. I, Sec. 10 of the Ohio Constitution and the Sixth Amendment to the United States Constitution. The right to due process of law and access to the courts is guaranteed by art. I, Sec. 16 of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution. The right to equal protection is protected by art. I, Sec. 2 and art. II, Sec. 26 of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution. 22Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N93 109. ODRC has adopted its policy denying and curtailing these rights claiming that the authority to do so was delegated to it by the Ohio General Assembly in Ohio Rev. Code § 5120.01. Ex. 1, ODRC 01-COM-11 ,p. 1. 110. The right to due process survives until the inmate’s death. Ohio Adult Parole Authority v. Woodard, 523 U.S. 372 (1998). The rights to counsel and access to the courts are extant whenever the need for legal representation or judicial intervention exists. The right to confidential attorney- client consultation is critical to the concept of due process and confidentiality survives even the client’s death. Swidler & Berlin v. United States, 524 U.S. 399 (1998). Equal protection requires that the condemned prisoner be given at least the same access to counsel that is afforded every other prisoner. 111. Defense counsel have needed to contact the courts during at least three scheduled executions, Broom, Bedford, and Otte. At least twice impediments imposed by ODRC have delayed the inmate’s access to the courts. 112. It is the usual circumstance that a condemned inmate has ongoing litigation in the state and/or federal courts on the day scheduled for execution. Moreover, even if a clemency request is not pending, the potential need for a clemency request on execution day is present for every inmate. 113. The Ohio General Assembly has issued no policy allowing or guiding ODRC in the curtailment of these state and federal constitutional rights. Even if rulemaking authority had been granted, the rules adopted are required to be “reasonable.” Williams v. Spitzer, 122 Ohio St.3d 546, 551, 913 N.E.2d 410,417 (2009). “[I]t is essential to the validity of such rules and regulations that they be reasonable and neither arbitrary nor discriminatory nor in conflict with the law.” Marz v. J. L. Curtis Cartage Co., 132 Ohio St. 271, 286, 7 N.E.2d 220 (1937) 23Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N94 114. No reasonable basis has been identified for subjecting defense counsel to special undefined search procedures on the day before an execution. No explanation as to why the usual prison search procedures are inadequate has been offered. No reasonable basis for precluding confidential attorney-client consultation on the day of execution has been identified. Cruel and Unusual 115. The Ohio Supreme Court has held that the steps taken to deliver drugs for an execution are not a part of the punishment of death but rather, are only preparatory steps. State v. Broom, 146 Ohio St. 3d 60, 65-66 (2016). 116. Based on the facts set out in all of the proceeding and subsequent paragraphs, Plaintiff Jackson respectfully submits that the way in which an execution is carried out, including “preparatory steps,” may and in the application of ODRC 01-COM-11, does violate the cruel and unusual prohibitions of both the state and federal constitutions. Ohio Const., art. I, Sec. 9, Eighth Amendment to the United States Constitution. Unconstitutional Delegation of Legislative Power and Violation of the Separation of Powers 117. The separation of powers requires that the legislature make the laws and the executive branch carry them out. The Ohio General Assembly has violated the separation of powers. It has placed in the hands of ODRC, an executive branch administrative agency, the unchecked power to decide what constitutes a lethal injection, use whatever preparatory process including piercings/cutting/wounding of the prisoner ODRC chooses, to use whatever drug or drugs ODRC chooses, and to limit constitutionally protected rights to access to counsel and the courts. By delegating to ODRC the power to define the execution method - changing it from “lethal injection” to “IV injection” — and there is nothing to prevent further changes — the Ohio General Assembly 24Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N95 has placed in the hands of the executive branch of government the power to define the law and carry it out in violation of the doctrine of the separation of powers. PRAYER FOR RELIEF Pursuant to Ohio Rev. Code § 2721.02, Plaintiff Jackson prays this court declare their rights, status and other legal relations under ODRC 01-COM-11 and declare that: 1) ODRC 01-COM-11 is unconstitutional on all bases alleged herein including that it was adopted in violation of the separation of powers, violates Plaintiff Jackson’s rights to due process of law, equal protection of the law, access to counsel and the courts; 2) ODRC 01-COM-11 was adopted by Defendants without complying with the requirements of Ohio Rev. Code § 111.15 and thus is void and cannot be applied to Plaintiff Jackson; 3) Ohio Rev. Code § 5120.01 did not delegate to Defendants the authority to adopt ODRC 01-COM-11; 4) Applying ODRC 01-COM-11 to Plaintiff Jackson will deny his rights to be subjected only to legally adopted execution procedures and thus will deny his rights to due process and equal protection; 5) The adoption of ODRC 01-COM-11 exceeded any rulemaking authority granted to Defendants under Ohio Rev. Code 5120.01 and was an unconstitutional usurpation of legislative power; 6) Delegation of the unguided authority to adopt and carry out ODRC 01-COM-11 was an unconstitutional delegation of legislative authority; 7) Plaintiff Jackson may not be executed under ODRC 01-COM-11 and Defendants are enjoined from doing so; 25Franklin County Ohio Clerk of Courts of the Common Pleas- 2018 Jul 12 8:00 PM-18CV000758 0E236 - N96 8) ODRC and the Director lack the authority necessary to promulgate rules regarding executions and permanently enjoin ODRC and the Director from enacting execution protocols in the future; 9) If the Court finds that either the Director or ODRC has the authority to promulgate rules regarding executions, Plaintiff Jackson asks that: a. b. The Court find that ODRC has to comply with Ohio Rev. Code § 111.15 legislative review and filing requirements. Because ODRC failed to comply with these requirements, Plaintiff Jackson asks that the Court find 01-COM-11 effective October 7, 2016 an invalidly enacted rule. The Court enjoin ODRC and the Dire