*1 Wendy KELLEY, Capac- in Her Official
ity Director, Department Arkansas as Correction; Depart- and Arkansas Correction, Appellants
ment .
Stacey JOHNSON, McGehee, Jason Nooner, Ward, Terrick
Bruce Jack
Jones, Williams, Marcel Kenneth
Williams, Davis, Lee, Don Ledell
Appellees
No. CV-15-992
Supreme Court of Arkansas.
Opinion June Delivered:
Rehearing July Denied *4 Gen., Rutledge, Att’y by: P.
Leslie Lee General, Rudofsky, Solicitor and Jennifer Merritt, Gen., Att’y L. for appellants. Ass’t Williams, Rock, John C. Federal Little Office; Public Defender and Jeff Rosenz- weig, appellees. GOODSON,
COURTNEY HUDSON Associate Justice cial Appellants Wendy capacity as Director Kelley, the Arkansas her offi- Correction, Department of the Arkan- Department (collectively sas of Correction *5 “ADC”) appeal by the orders entered County Pulaski Circuit Court denying summary their motions to dismiss and for judgment against multiple challeng- claims constitutionality of Act 1096 of Johnson, 2015 brought by appellees Stacey McGehee, Ward, Jason Bruce Terrick Nooner, Jones, Williams, Jack Marcel Don Davis, (collectively and Ledell Lee “Pris- oners”). reversal, For ADC contends that sufficiently the Prisoners plead failed prove them constitutional vio- asserted lations in order overcome the defense sovereign immunity. We reverse the cir- in cuit court’s toto decision and dismiss the complaint. Prisoners’ amended |2I. Background Factual litigation This by was initiated the Pris- oners who are under sentences of death murder, for capital and the issues are cen- (the “Act”), tered on Act 1096 of 2015 which is codified at Arkansas Anno- Code 2015). tated (Supp. section 5-4-617 The Act by establishes the current method which executions in are to be conducted Arkansas. previous provided, Act because the reasonable
The
amends
method-of-
statute
statute,
Ar-
formerly found at
execution
guidelines
determining
in
ADC
Annotated section 5-4-617
kansas Code
in carrying
method to use
out the death
2013),
passed
by
into
(Repl.
was
law
McGehee,
penalty.
Hobbs
pro-
Act
Act
2013. Under
116,
The Prisoners first filed suit in operative pleading which is the at issue in *7 against County ADC the Pulaski appeal. complaint The con- amended Court, challenging Circuit the constitution- separate tains of action that causes fall ality of the Act. ADC removed the action into categories: challenging two claims the | However, to federal the Prisoners constitutionality | scourt. Act’s the nondisclo- fiof the federal case promptly dismissed with- provisions regarding identity sure the of prejudice out and returned to the circuit of supplier drugs, the the and claims chal- filing court with the of an com- amended lenging of constitutionality the the selected plaint, asserting only Ar- claims under the of method Each claim execution. is made kansas to mo- response Constitution. under the Arkansas Constitution. With ADC, by tion to filed dismiss the Prisoners nondisclosure, respect to the Prisoners al- present filed the action under a new case leged confidentiality provisions the of number. (1) Clause, the Act violate the Contract 2, 17, impairing found at
During litigation, by the course ADC article section the prisoners of obligations informed the its intent to the by exe- disclosure undertaken using three-drug cute them the combina- ADC in the agree- June 2013 settlement (2) ment; speech offend the freedoms of substantial and unnecessary pain and suf- 2, press guaranteed by the article and fering. 6; (3) rights proce- section violate their ADC subsequently filed a motion asking protections part dural are of the Cruel the circuit court to request address its or Unusual Punishment Clause set forth regard dismissal with three Pris- the 2, 9; (4) transgress article section oners’ claims that court had right procedural process due under arti- neglected to 9, rule on in its October 8; (5) 2, cle separation section violate 22, 2015, order. On October the circuit
powers by precluding judicial adequate re- court supplemental entered to pro- order (6) execution; of the view means and concerning vide a decision the omitted contrary are to the Publication Clause claims. The court dismissed the Prison- Regarding found at article section 12. ers’ contention that Act violated the ex execution, the means of the Prisoners al- post facto of the clause Arkansas Constitu- (1) leged implementation of the Act tion, but court denied the motion to right pro- violates substantive due regarding dismiss publication claim cess in article section of8 found clause Arkansas Constitution; (2) Constitution Arkansas the Act violates due-process separation powers conjunc- under article claim asserted ADC; delegating unfettered discretion allegation tion with the of cruel or unusual (3) using execution three-drug- either the punishment. The circuit court also ruled protocol, Midazolam or drugs, compounded pled the Prisoners had sufficient facts electrocution constitutes cruel unusual demonstrating feasible alternatives to the punishment 9; article under section current of execution. method ADC filed (4) the Act Ex violates the Post Facto of appeal notice from the ruling two orders Clause article on their motion to dismiss. ADC filed a motion to dismiss the partial Prisoners moved for sum- complaint ground on amended of sov- mary judgment, ADC moved for sum- motion, ereign immunity. In the ADC mary judgment remaining on all the claims argued that claims Prisoners’ were motion, asserted the Prisoners. by sovereign immunity barred because the argued that it was entitled sum- complaint cognizable failed to state claims mary judgment grounds sovereign any violation. In an constitutional order immunity because Prisoners had 9, 2015, dated October circuit court proved viable claims constitutional separation-of- dismissed Prisoners’ violation. The circuit court ^entered powers allegation claim as to the of im- order on December granting sum- delegation |7on proper authority, based mary judgment on the claims disclosure McGehee, supra, court’s decision .denying summary judgment court the motion to but denied dismiss Specifically, claims. means-of-execution claim, regard to the contract-clause granted the court ADC’s motion for sum- claim, freedom-of-speech press *8 mary remaining on judgment the separa- regarding procedural process, claims due tion-of-powers The claim. circuit court separation-of-powers the claim re- granted the motion for Prisoners’ sum- spect to the of judiciary, function the and mary judgment on their contract-clause the method-of-execution le- claims the claim, their regarding claim of freedoms thal-injection procedure violates the ban speech press, and regard- their claims on or punishment cruel unusual and alleged right process process, publication-clause of due and the substantive due objectively be free of unreasonable risks of claim. The circuit denied ADC sum- court 354 to im- terlocutory appeal right is that on the Prisoners’ substan-
mary judgment
claim and the cruel-or-
lost if
due-process
munity
effectively
from suit is
tive
claim,
ruling that
unusual-punishment
permitted
go
to trial. Ark.
case is
State
as a
Co.,
could
be decided
those issues
Comm’n v. Duit Constr.
2014
Claims
questions
material
of law because
matter
432, 445
496.
Ark.
S.W.3d
dispute.
ADC filed a
of fact remained
explained, sovereign
As we have
appeal
of
from this order.
timely notice
immunity
jurisdictional
immunity from
is
litigated
question of
parties
The
also
suit,
jurisdiction
must be determined
3,
In
protective
order.
its December
entirely
Fitzgiven
v.
pleadings.
order,
circuit court
ADC’s
denied
2015
Dorey,
Ark.
429
S.W.3d 234.
request
protective
for a
order
directed
This defense arises from article
seller,
manufacturer,
identify the
dis-
it to
Constitution,
20 of
Arkansas
which
tributor,
lethal-injec-
of
supplier
of
provides: “The State
Arkansas shall
to be used
executions
no
tion
in any
made a defendant
of her
never be
2015. On
later than noon December
courts.” This court has
the doc
extended
3, 2015,
applied
ADC
to this
December
sovereign
of
immunity
trine
include
stay
court for an immediate
of the circuit
agencies.
Dep’t Cmty.
Ark.
state
Corr.
day,
On that same
court’s order.
City
Bluff,
Pine
Ark.
stay
granted
temporary
determining
S.W.3d 731.
whether the
pending briefing.
court’s disclosure order
sovereign immunity applies,
doctrine of
7, 2016,
an
January
On
we issued
immedi-
judgment
if
court should determine
stay
proceedings
of all
in the circuit
ate
plaintiff
operate
will
to control
during
pendency
appeal.
court
of this
subject
liability.
action of the State or
it to
Servs.,
Dep’t
Ark.
Human
v. Fort Smith
Propriety
Appeal
II.
Dist.,
2015 Ark.
Sch.
S.W.3d
brief,
In their
the Prisoners contend
so,
against
If
the suit is one
the State and
jurisdiction to hear
that this court lacks
sovereign
im
is barred
the doctrine
appeal
the circuit court did not
because
munity,
exception
sovereign
unless an
on the
ADC
specifically rule
issue whether
immunity applies.
Dep’t
Ark.
Envtl.
sovereign immunity.
is
In re-
entitled
Al-Madhoun,
Quality v.
sponse,
argues
appeal
is
(2008).
recog
This court has
sovereign |9immunity
proper because
was
ways
nized three
which a claim of
hnin
on which it
for dis-
sole basis
moved
sovereign immunity may be surmounted:
summary judgment
missal
(1)
moving
seeking
party
is the
State
that the circuit court has ruled on all the
relief; (2)
specific
legislature
an act of the
issues
in their motions.
raised
specific
sovereign
has created a
waiver
general rule is that the
denial
(3)
immunity;
agency
acting
the state
is
summary judgment
is
a motion for
nei
unconstitutionally, or if
illegally,
a state-
appealable.
ther
nor
Ark.
reviewable
agency
purely
minis
officer refuses
do a
2(a)(10);
R.App. P.-Civ.
Bd.
Trs.
required by
action
Bd.
terial
statute.
However,
Cty.,
Pulaski
Ark. 230.
Burcham,
Trs. v.
356
genuine
in
alleged
issues
treat as true the facts
the com-
apparent
it is
no
when
litigation
requiring
exist
light
of material fact
in
and view them
most
plaint
moving party
is entitled
plaintiff. Key
Curry,
v.
favorable
Quarles
a
of law.
v.
judgment as matter
392,
testing
1. In
2015 Ark.
473 S.W.3d
Rehab.,
&
Courtyard
Health
Gardens
sufficiency
complaint
of a
on a
motion
112,
LLC,
488
613.
2016 Ark.
S.W.3d
dismiss, all reasonable
be
inferences must
only approve
granting
“[W]e
complaint,
in
resolved
favor
state of the evidence as
motion when the
liberally
pleadings are
be
construed.
affidavits,
dis-
portrayed by
pleadings,
Walther,
285,
Ark.
v.
2015
467
Sanford
responses,
admissions on file is
covery
require
139. This court’s rules
S.W.3d
nonmoving party is
enti-
that the
not
such
pleading,
complaint
and a
must state
fact
court, i.e.,
to a day in
when there is
tled
facts,
conclusions,
mere
order
remaining
any genuine
issue
fact
Grp.,
pleader
entitle the
Ballard
relief.
moving party
judg-
and the
entitled
USA, Inc.,
BP
Inc. v.
Lubricants
2014
Town Lead
ment as a matter
law.”
276,
Ark.
436
445.
S.W.3d
Reg’l Pub.
Hill v. Ozark Mountain
Water
Auth.,
360,
3,
118,
2015 Ark.
at
472
2,
S.W.3d
9 of
con
Article
our
(quoting Flentje
121-22
v. First Nat’l
provides
or
stitution
that “cruel
unusual
563, 569-70,
Wynne,
Ark.
11
Bank
340
punishments
inflicted.”
[shall
be
not]
531,
(2000)).
536
S.W.3d
standard
arguments
are
point
ADC’s
under
the evidence is sufficient to raise
whether'
on the United
Supreme
based
States
issue, not
a factual
whether the evidence is
Rees,
v.
Court’s decisions Baze
553 U.S.
compel
sufficient to
a conclusion. Talbert
(2008),
35,
1520,
128
420
S.Ct.
170 L.Ed.2d
Bank,
148,
v.
Ark.
U.S.
372
When dismiss, court’s on a n. decision motion 846 & S.Ct.
357 (1994)). Second, prisoner 811 a that we should provi- L.Ed.2d assert construe our prove “any posed by differently must that Eighth risk sion because challenged is substantial when uses the method Amendment “cruel words and compared to known and available alterna punishment,” unusual whereas the Arkan- Glossip, methods of 135 tive execution.” disjunctive sas Constitution contains the at this of prong S.Ct. Under 2737-38. phrase punishment.” “cruel or unusual As test, prisoner identify a “must an alterna in Glossip, the Court clear made bur- ‘feasible, that readily implemented, tive is showing a den known al- and available fact significantly and in a sub reduce[s] a component ternative is substantive of an ” pain.’ stantial at risk severe Id. 2737 Eighth method-of-execution Amendment Baze, (quoting at 553 U.S. S.Ct. claim. are not We convinced that 1520). This burden is not “by met show slight in phraseology variation between ing slightly marginally a or safer alterna the two constitutions denotes a substantive tive.” Id. or conceptual provi- in the difference two compel disregard sions that would tous setting standards,
In these the Court any part of the governing challenge test a that, recognized capital punish because to Accordingly, a method execution. we constitutional, necessarily ment is fol “[i]t decline the Prisoners’ to depart invitation that there lows must be a [constitutional] practice interpreting from our con- our carrying Glossip, it out.” means stitutional provision along the same Baze, lines (quoting S.Ct. at 2732-33 U.S. at precedent, adopt as and we 1520). hereby federal 128 S.Ct. The standards were the standards in both Baze and shaped by the enunciated also Court’s dual observa Glossip. that, Accordingly, challenging a tions “because risk of pain some is method of execution,. under the Arkansas execution inherent method Constitution, the burden squarely have held that the Constitution falls does not prisoner (1) require to show that1 pain” the avoidance of all risk of a the current “[h]olding presents that method execution a Eighth and that risk that very likely Amendment sure or demands elimination of cause illness serious essentially pain suffering all risk Of that effectively gives would needless rise (2) penalty altogether.” sufficiently dangers; outlaw Id. imminent death known, feasible, at 2733. there readily imple- are mented, that and available alternatives past, As we have noted significantly risk of reduce substantial court interpreted has article 9 in pain. proceed now to a severe We discus- a manner that prece consistent with arguments sion of ADC’s that are based regarding under dents law federal on these standards. State, Eighth Amendment. See Bunch v. lif,ÁDCfirst Prisoners contends (2001).. S.W.3d pleading to meet failed their burden Bunch, we said that we will continue 11Bto their proving proposed alternative “legal authority so a party do unless offers methods o'f execution are feasible and ca- persuasive argument change our le pable being readily implemented. gal course.” Id. at at 138. opposing argument, the Prisoners case, In this urge the Prisoners us they sufficiently pled maintain that five requirement disavow the established Baze, amplified by protocol as alternatives the Midazolam Glossip, the Court in that, prisoner purposes summary judgment, prov bears the burden they presented sup- known and alternative sufficient evidence available protocol. state’s current They port execution their contention that the alternative had readily protocol adopted, available current was she known and are methods obtain a attempts for use. made unsuccessful capital in carrying barbiturate to use out complaint, the Prison- In their amended punishment by injection. Kelley lethal a number of alternative exe- pled ers potential suppliers said that lethal are available would procedures cution *12 ADC, to to declined sell them the and she pain of the risk and significantly reduce explained that the sellers concerned were use of the Midazolam suffering than the publicity of First, about adverse and loss proposed protocol. Prisoners if they suppli- business were identified as firing squad as an alternative. execution allegation drugs with of for supported ers used executions. She They Groner, who of Dr. Jonathan stat- supplier affidavit further stated that the who sold by firing squad, if skill- ed that execution FDA-approved drugs currently in “nearly would result fully performed, possession agreed drugs to ADC’s sell the painless and death” because instantaneous receiving only copy after of the Act and brain, to the “[disruption of blood flow confirming required by that ADC is law from result lacerations to the which would confidential, keep identity unless or- its bullets, by multiple causes almost heart in litiga- dered disclose the information consciousness, resulting loss of immediate Finally, suppli- tion. she averred that the or no In pain.” little rapid death with has that it will not position er taken firing squad, Prisoners to the addition any drugs for use in provide additional of a the use massive dose an advocated executions and that she is unaware barbiturate, fast-acting FDA-approved, identity any supplier manufacturer They and Nembutal. also such as Brevital drugs for that will sell use in executions. of a of an option massive dose offered affidavit, In his that he stated Griffin sevoflurane, namely gas, anesthetic desflu- investigation had conducted an into the rane, addition, the Pris- or isoflurane. availability drugs for use executions. the use of a massive dose proposed oners investigation consisted of a series Sublimaze, injectable opioid, such as an phone day calls Griffin made before patch of a or a massive dose transdermal swearing reported out the affidavit. He Duragesic. supported The Prisoners like willing that Akorn not Inc. was sell agents of these lethal with the the use pur- for that Nembutal Sodium Solution Stevens, Craig Dr. report of who holds pose requires buyers and that Akorn in pharmacology. Stevens doctorate sign form stating they will not di- report drug these opined his produce |17a Akorn’s products any department vert protocols rapid would and Further, |18ofcorrection. painless reported he identified the Griffin the same death. drugs of the various drug manufacturers and information respect to the Bre- drugs commercially stated that the were contacting representative vital after available.2 Par inquired Pharmaceuticals. He of Bax- Health Corp. gas- ter about the anesthetic proposed
To
the Prisoners’
al-
counter
es
desflurane and isoflurane and was
ternatives,
presented the
affidavits
willing
told that Baxter
to sell
was
Kelley
Rory
Director
Executive
Griffin,
gases executions. Griffin stated that
deputy
ADC’s
director.
her
affidavit,
that,
Kelley stated
he contacted Jannsen
before
Pharmaceuticals Co.
incorporated
complaint.
attached
2. The Prisoners
amended
report
Groner’s affidavit
Stevens's
into
ADC,
Duragesic patches.
about
about
department
whether
as a
Sublimaze
relay
questions
He
in correction,
was advised
his
is able
obtain the
writing
expect
could
a re-
he
purpose
carrying
out
execution.
sponse
eight
from
in six to
them
weeks. Consequently, the Prisoners failed to even
said that he
a written
Griffin
submitted
allege
proposed
drug protocols
request but that
he had
received a
are
“readily implemented”
“feasible” and
response.
stated that he
Griffin
also con- by
Accordingly,
ADC.
the circuit court
a wholesale
Louisi-
tacted
from
distributor
in concluding that
pled
erred
the Prisoners
ana,
Co.,
Morris &
Paul
Dickson
LLC.
sufficient facts as to
proposed
alterna-
Dickson,
owner, reported
that he
drugs.
tive
have to obtain
approval
would
We
the same
reach
result with
selling drugs
manufacturers before
respect to the Prisoners’ alternative meth
*13
ADC for use
executions.
od of
firing squad.
a
In
to
their effort
ADC contends that the Prisoners
by firing squad
show that death
signifi
“plead
pro
failed to
that the
prove”
cantly
a
risk of
reduces
substantial
severe
posed alternative
to
methods
execution
pain,
pled
that
Prisoners
this method
protocol
the Midazolam
are feasible and
would result in
painless
instantaneous and
ADC,
readily implemented by the
as re
death.
In terms of whether this method is
quired
in Glossip.
under
the decision
capable
ready implementation,
the Pris
However,
procedural
we observe that the
merely alleged
oners
in their amended
posture
Glossip
is much different from
bullets,
complaint
firearms,
that ADC has
that
appeal,
which is involved
this
which
personnel at its disposal
carry
to
out
comes
us
motions to dismiss and
However,
an
allegations
execution.
these
summary judgment.
Glossip,
In
entirely conclusory
are
in nature. Conclu-
prisoners’
case involved the
request for. a
preliminary
sory
injunction that
af
statements are not
was denied
sufficient under
three-day evidentiary
ter a
hearing.
Procedure,
Arkansas Rules
Civil
Supreme
upholding
Court’s decision
identify
which
fact-pleading
as a
Arkansas
findings of
approving
the lower court
Kirchner,
509,
state.
v.
Worden
2013 Ark.
protocol
Midazolam
on the
based
evi
was
243;
Buchan,
Born v.
Hosto &
developed
dence
in that record and the PLLC,
292,
372 S.W.3d
In
324,
application of its
Court’s
deferential stan
case,
this
the Prisoners failed
substanti
of review to
court’s
dard
the lower
find
conclusory allegations
ate
contained
ings.
places
This
the Court’s statement
complaint.
their amended
that
“Eighth
requires
Amendment
merely
that
emphasize
We wish
recit-
prisoner
prove
a known and
plead
ing
allegations
not
bare
is
sufficient to
proper
alternative” in its
context.
available
firing squad
readily imple-
show
is a
Nonetheless,
Glossip,
ner that end, To that the Prison- disputes.” their may acquaint with the courts themselves complaint con- agreed to amend ers their persons place and circumstances and | ^as-applied to omit them cerning Act 139 in the same situation as the themselves understanding the from ADC claims with made contract. Schnitt v. parties who the that, a new “in the event that ADC adopts McKellar, 244 Ark. S.W.2d lethal-injection protocol Case No. before (1968). final litigated has been to a 60CV-13-1794 standards, | ¡aJudged by hold these right judgment,” the Prisoners had the to agreement not the settlement does complaint as-ap- to their reassert amend identity require the disclosure challenges lethal-injection to the new plied drugs of the supplier present used asserting without ADC the de- procedure lethal-injection protocol. agreement The judicata. agreed of res ADC also to fense parties reflects that in the were midst if not that defense Prisoners raise litigation concerning Act 139 separate present initiated a as- lawsuit by that allowed execution means a ben- challenges proto- applied new to “ADC’s zodiazepine followed a barbiturate. It ground on col” “that such claims are required by is clear that the disclosures as- they because should have been barred agreement respect any new in Case serted No. 60CV-13-1794 Case protocol pursu- adopted were tied those No. 60CV-13-1204.” The settlement agreement following agree- contained the disclo- ant to the 2013 Act. The settlement requirements: sure cannot expressing ment be read as that, agree obligation 10 intention to a continuing within create defendants adopts days business after ADC a new part of ADC make disclo- similar lethal-injection protocol, pro- "ADC will protocols adopted sures based accor- protocol of the vide a new coun- copy yet legis- future dance with conceived addition, plaintiffs. for the sel interpretation The circuit lation. court’s that, agree days defendants within 10 agreement par- of the does not reflect the they possession after obtain intent, ties’ we must so reverse decision drugs that ADC intends to use that the Act violated the clause. contract procedure, lethal-injection the defen- existing Because there is no contractual notify plaintiffs’ dants will counsel disclosure, obligation of the Act cannot drugs has'obtained the and will the contract offend clause constitu- specify which have been obtained tion, pack- the packaging and disclose slips, inserts, age and box labels received from Publication Clause D. supplier. Ar Article section 12 of the bar, object In the case at our provides, kansas Constitution parties, to ascertain intention of the An accurate and detailed statement from particular phrases, words or but receipts expenditures agreement. from the entire context of the public paid, money, the several amounts HPD, Techs., Inc., LLC v. TETRA account, shall, and on what whom Ark. 304. In interpreting time, published may from time be as contract, meaning first rule prescribed law. give construction language to the In contesting the court’s decision meaning parties As intended. Brosh, confidentiality requirement of the bury Auto. that the Used Car Ctr. v. constitution, Ark. To con- *18 S.W.3d 275. arrive at the Act violates the
365 case, may pre- from the nature of the in- phrase, that “as be are as tends law,” provi- by capable compulsory that the scribed indicates enforcement as not self-executing not and thus does sion is directory provisions general. are in private of action. give rise to a cause that, purpose may reason is while the be emphasizing phrase, argues it Again duties, to or rights impose establish to Assembly the author- General has not they do in and consti- themselves prescribe the time means of ity to and the by tute rule sufficient means which disclosure. may right protected such be or such cases, duty enforced. In
| such before court reviews a circuit soThis provision can interpretation court’s of a constitutional be made constitutional effectual, provision City Fayetteville supplemental legislation v. de novo. must 455, Cty., had, 369 255 844 provision may Ark. S.W.3d and the in Wash. be be its (2007). not We are bound mandatory to Legislature nature to decision, court’s the absence of a but enact legislation, though the needful showing that the circuit court erred authority back of it lies to there no law, interpretation interpreta enforce the command. accepted appeal. tion will be Kimbrell Rock, City Cumnock v. Little 168 443, McCleskey, v. 2012 Ark. 424 S.W.3d (1925), Ark. 466 271 S.W.2d added we provi Language 844. a constitutional question in every case is whether unambiguous plain sion is must language of provision the constitutional meaning. given be its obvious and common |s1to is addressed the court or to the Gen- Wright, v. 2015 Ark. Smith Assembly, meaning provi- eral whether 687. Neither rules of construction S.W.3d enactment, sion present was intended as a interpretation may nor rules of be used to complete legislation, itself as definitive meaning the clear certain of a defeat contemplates subsequent leg- it or whether provision. constitutional Richardson v. If carry islation it into effect. there is
Martin, 2014 Ark. 855. S.W.3d language indicating subject that the is re- Rhoton, 89, 95, Griffin Assembly, provi- to the ferred General (1907), S.W. this court established self-executing. is not sion construed as general determining rules whether Cumnock, supra. supra, In Griffin, we provisions of the constitution are self-exe- that the framers not intend the held did cuting: self- provision under consideration be provision A may constitutional be said executing phrase it contained the because self-executing if it supplies be a suffi- by appro- “as hereafter be directed shall rule, by right cient means of which the legislation.” priate Accordingly, also may given enjoyed protected, be or taxpayer’ held that a citizen did enforced; duty imposed may be right legal have enforce obedience self-executing merely it when provision. principles, laying indicates without down opportunity take this devel We principles rules means of which those concerning op our limited case law article may given the force of law. This 12. court has said that (7th Ed.) Cooley’s p. Const. Lim. requirement disclosure limited The same com- learned author further Martin, Ark. expenditures. Snyder subject But, although says: ment (1991). also have We provisions none constitution the-provision held that authorized Gen upon are be looked as immaterial which, Assembly Publicity Act of merely advisory, are some eral to enact the there *19 366 publication provided prescribe for and that it which duties demands matters,
laws,
miscellaneous
reports, and
carrying
policies
officers
out such
when it
against
including claims allowed
counties.
peace
is deemed best
and welfare
Hambleton,
v.
235 Ark.
360
See Clark
people. Campbell
of the
Ark
State
Trevathan,
(1962); Jeffery v.
486
S.W.2d
Hosp., 228 Ark.
paid, expenditure paid, to is whom Hart, JJ., Danielson and dissent. published account be “from what “shall” Justice, may Wynne, Robin F. in prescribed by concurring time to time” “as be undisputed expenditure part law.” It that an in dissenting part. is public money pur made was appellees believe that satisfied their Iasi chase of the to be used execu . stage regard burden at to their tions. The issue whether the [^General claim that the method of execution set Assembly authority has the to direct the forth Act substantively circumstances under which the information prohi- violates the Arkansas Constitution’s view, to In our consti revealed. be punishment. bition of I cruel unusual Assembly tution left it the General further portions believe that of Act 1096 determine the time and the manner for the 19, § 12 of violate article the Arkansas public expenditures. In this disclosure Accordingly, Constitution. I concur instance, Assembly discharged the General part part. and dissent in in a obligation manner is consistent majority’s appellees The conclusion that adopting with the constitution. satisfy their stage failed burden at this legislation, completely it did shield regarding prong of the second test identity supplier disclosure. —Gross, in Glossip announced U.S. Instead, Assembly the General determined -, S.Ct. L.Ed.2d 761 is to disclosure be made (2015), is majority mistaken. con- litigation on ADC in the condition that appellees present cludes that failed to facts protective first As a apply for order. question regard- sufficient create a of fact general principle, recog matter of we have posed by whether the risk chal- Assembly, nized that the General unless constitution, lenged by the has full method of execution is substantial restricted plenary powers adopt policies compared such when known available guise Supreme opposing Under the Arkansas Court this court and counsel the citation 5-1®, parties Rule have favored us with a case that will be referred to at oral only argument series of what can described as letter that was not or her cited his brief, practice. permit parties present briefs. We do not condone this Al- it does not though requires litigant argument along the rule furnish with the citation. *20 holding Appel- majority The further errs methods of alternative execution. (i)(3) 1096, a triable issue as to the that of Act have created subsection which lees They Glossip test. prong Department the second the Arkansas allows Cor- alternatives have laid out several different to disclose the information after rection carry reduced risk they order, that contend obtaining protective brings to the chal- pain compared when severe provisions legisla- within the nondisclosure They have lenged method of execution. authority ture’s to determine the time and that the meth- produced evidence further However, manner of article disclosure. they carry that ods are available and requires § 12 infor- .expressly comparison reduced risk in with the meth- published. mation To publish be some- Appellants in Act 1096. contained od publicly is to it it thing declare make assertions, in their but might be mistaken New generally known. Webster’s Third stage in is not us at this issue before (2002). Dictionary International I the mat- proceedings. would remand Essentially, saying majority proceed- ter to circuit court for further requirement for certain information to be ings challenge on appellees’ substantive if publicly satisfied a state declared out in Act lethal-injection protocol laid agency gets prohibiting first an order 1096. being public. made information from majority’s analysis of whether The absolutely That no sense whatsoev- makes confidentiality of Act requirements clearly Portions of Act 1096 er. violate 19, § 12 of the 1096 violate article Arkan- 19, § 12 of the Arkansas Constitu- article is likewise flawed. As sas Constitution tion. I hold those subsections would notes, majority stated the Act to be unconstitutional on that ba- Griffin Rhoton, 89, 95, 85 Ark. 107 S.W. 382 sis. (1907), provision that “[a] ^constitutional I in part For these reasons concur if may self-executing sup- to be it be said in part. dissent rule, by plies a sufficient which means given may enjoyed pro- right be Justice, Danielson, dissenting. E. Paul tected, duty may imposed or the be en- This respectfully dissent. court laJ forced; self-executing and it is when jurisdiction appeal lacks to hear this be merely principles, laying indicates without ruling on the specific cause there was no prin- those down rules means which sovereign immunity. issue Arkansas ciples may given the force of law.” be Appellate Procedure —Civil Rule test, § 12 is self-exe- Under article 2(a)(10) (2015) an permits appeal an from cuting. merely indicating princi- Far from a motion to interlocutory denying order exactly ples, provision clearly states sovereign dismiss based on the defense given information is to be to the what Lottery immunity. Ark. Comm’n See given to public. only role the General Mktg., Alpha 386 S.W.3d how to make Assembly is decide However, interlocutory ap 400. an before public. thing information One of a peal may pursued from the denial Assembly may not do is decide General ground on motion to dismiss sover public. information whether make the immunity, place an eign we must have pro- exactly This is what the nondisclosure denying motion to dismiss order do, majority visions of the Act and the has that basis. Id. erroneously legitimize that over- chosen Here, interlocutory the ADC filed authority by Assem- reach General court’s appeal from the circuit order dated bly. Therefore, is on protec- court’s the onus the ADC seek a December to the is limited December review tive order. determining whether order in statute, keeping appellants sovereign court immunity. ruled protective for a moved order to shield order, very the circuit court makes having to disclose the informa- them claim, specific rulings yet on each *21 makes 3, 2015, tion. In its order filed December immunity. no on ruling sovereign the the motion for circuit court denied a Contrary majori- to the assertion the protective appeal, appellants order. On Marketing
ty, Alpha apply does in this challenge rulings the circuit court’s been clear case. This court has that will provisions require certain constitutional ruling circuit presume not a the disclosure the information. In their silence, as we have court’s held that brief, appellants address constitutional a not matter on which will review clause, relating claims to the contracts ruled, ruling “and a not circuit court has speech press, freedom of proce- and the presumed.” Alpha Mktg., be should not process, publication pub- dural due at at 404 Ark. S.W.3d lic expenditures. such, original). (emphasis in As this court however, Appellants, present not did as jurisdiction to ap- lacks hear the instant a point appeal argument on an separate I peal. this Accordingly, would dismiss challenging specific circuit court’s rul- appeal prejudice. without ing denying motion for a protective their any order. To the extent Hart, Justice, Josephine Linker interlocutory claims appeal raised this dissenting. on ruling based an on implied were sover- First, I respectfully majori- dissent. eign immunity, for protective a request preserved not for ty ap- addresses issues order also on claim was based a of sover- pellate Arkansas Code review. Annotated eign immunity and on an appealable thus 2015) 4—617(i)(2)(B)(Supp. pro- section 5— Furthermore, interlocutory basis. an or- Department vides the Arkansas denying a motion for or- protective der |sn(ADC) “shall keep Correction confiden- | ^interlocutory appealed on may der be identify tial all information that may or 2(f)(1).1 Ark. P.-Civ. R.App. basis. Be- of ... lead to the identification enti- [t]he not they challenge appeal cause do on test, sell, persons compound, ties and who protective circuit court’s denial or- supply drug or or ... medical der, appellants have abandoned chal- supplies, equipment for the exe- medical relating lenge the circuit court’s denial. process.” Annotat- cution Arkansas Code argued Issues but not raised below on 4—617(i)(3) ed provides 5— See, appeal are considered abandoned. “shall disclose information Johnson, e.g., State v. 102 n. Ark. in litigation covered under subsection (2008). 131 n. Essen- without first applying court for a issue, tially, by addressing appel- protective regarding the order information lants have conceded the correctness of the Thus, according under subsection.” denying court’s order the motion for a statute, there is not an absolute bar to protective order. of the information disclosure Rather, Furthermore, litigation. ADC in though before the in- even the circuit litigation, findings formation is be disclosed in court made that disclosure was Appellees comply no made effort rule. terlocutory denying circuit constitutionally required, the court’s “order a motion to protec appellants’ motion dismiss ... on the denial based defense sover- as an alternative basis tive order served eign immunity.” 12(j) Rule of the Arkan- requiring disclosure. circuit When provides, sas Rules Civil Procedure “At- on than court more one bases decision torneys will be notified action taken here, ground independent as where rule, and, the court under this if appropri- —such appellants’ con the circuit court ruled ate, designate thé court a certain num- will claims, appellants’ as stitutional well as of days party given ber is to in which a be protective required motion for a order and plead pursu- further. a dismissal When ap of the information —and an disclosure 12(b)(6) ant to is granted Rule because pellant challenge grounds fails to all those to, complaint is factually determined here, appeal appellants as where —such insufficient, improper then it for such only addressed constitu court’s *22 granted prejudice dismissal to be rulings tional affirm ad will without —we plead pursuant without leave to further to dressing any grounds. Evangelical of the 12(j). Rule Ballard Inc. BP Grp., v. Lu- Soc’y Samaritan v. Kole Lutheran Good USA, Inc., bricants at Thus, sar, 2014 Ark. at 6. I would Because majori- the the circuit to re affirm decision court’s ty plead dismisses failure sufficient quire addressing the disclosure without facts, I submit the dismissal is without n rulings related disclosure of prejudice, appellees fur- may plead Moreover,.if, the information. as the ma ther. jority implies, appeal- the issue was not Third, disregards majority the a critical able, question then it is a resolved between the state and the fed- distinction Thus, court in a future under appeal. eral Article section 9 of constitution. analysis, majority’s prema the dismissal is prohibits this state’s the inflic- constitution ture. punishments.” tion of or unusual 139“cruel lasSecond, majority the holds contrast, Eighth Amendment concluding in ap- circuit court erred prohibits federal constitution the infliction pellees pleaded sufficient facts as to the Ap- of “cruel punishments.” and unusual alternative methods execution. In re- pellees ask this court consider dis- viewing on mo- the trial court’s decision tinction “and” “or” between words tion dismiss under Ark. R. Civ. P. reject two-prong and to test that 12(b)(6), alleged treats the court facts Supreme Court has devel- United States complaint as true them 'and views interpreting Eighth in its cases oped light party most favorable to the who rejects majority Amendment. The this no- complaint. Kelley, Waller filed tion, holding that are “[w]e convinced testing sufficiency Ark. 252. In slight phraseology variation in dismiss, complaint on a all rea- motion between the two denotes a constitutions sonable inferences must be resolved fa- or conceptual difference in the substantive pleadings vor are complaint, provisions two compel would us liberally majority to be Id. The construed. disregard any part governing of the test alleged does not treat the facts as true or challenge to the method execution.” liberally complaint, construe the and However, noted, as one treatise has “The plead- materials considers outside conjunctions and or are two Furthermore, ings. appellate posture English language. words 2(a)(10) elemental in the is unusual that Rule this case ... combines items Appellate [A]nd of the Arkansas Rules of Proce- while or creates Competent in- permits appeal dure-Civil an alternatives. users the lan- meaning.” guage rarely hesitate over their Gamer, Bryan A.
Antonin & Read- Scalia Interpretation Legal Law: The (2012). The distinction Texts 116 is dis- majority, by the and this case
missed precedent as an unfortunate
serves involving interpretation
future cases contracts,
statutes, or the state constitu-
tion.
Michael David Johnson,
Kenneth and J.W.
Looney, Appellants STONE, H.
Gail Executive Director of *23 Sys
the Arkansas Judicial Retirement
tem; Edwards, Robert Chairman Sys
the Arkansas Judicial Retirement
tem, Judge; Gayle Ford, Circuit Cir Judge (Retired); Hewett,
cuit Mark Judge (Retired);
Circuit Charles Year
gan, Judge; Circuit He and Marcia
arnsberger, Judge, Appellees Circuit
No. CV-16-85
Supreme Court Arkansas.
Opinion Delivered: June