James D. O‘Neal et al., Plaintiffs-Appellants, v. State of Ohio et al., Defendants-Appellees.
No. 19AP-260 and No. 19AP-289
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
February 13, 2020
2020-Ohio-506
(REGULAR CALENDAR)
[Cite as O‘Neal v. State, 2020-Ohio-506.]
DECISION
Rendered on February 13, 2020
On brief: Law Office of S. Adele Shank, S. Adele Shank; and Lawrence J. Greger, for appellant James D. O‘Neal. Argued: S. Adele Shank.
On brief: Timothy Young, Ohio Public Defender, Richard A. Cline and Randall Porter; Jon M. Sands, Federal Public Defender for the District of Arizona, and Dale A. Baich, for appellant Cleveland Jackson.
On brief: Dave Yost, Attorney General, Charles A. Schneider, and Brenda S. Leikala, for appellees. Argued: Brenda S. Leikala.
APPEALS from the Franklin County Court of Common Pleas
{1} Plaintiffs-appellants, James D. O‘Neal and Cleveland Jackson, appeal from the judgment of the Franklin County Court of Common Pleas denying their motions for summary judgment and granting the motion for summary judgment filed by defendants-appellees, State of Ohio and the Ohio Department of Rehabilitation and Correction (“ODRC“). Because the parties agree that there are no disputed factual issues and because appellees are entitled to judgment as a matter of law, we affirm.
{2} Since 1994, ODRC has maintained an execution protocol setting forth comprehensive and detailed procedures to be utilized in carrying out court-ordered executions in Ohio. Over the years, ODRC has revised the execution protocol numerous times, with each subsequent protocol superseding the previous one. The twentieth and most recent version, designated 01-COM-11, became effective on October 7, 2016 and remains in use and effect. Each version of the execution protocol, including the present version, have been promulgated by ODRC as policies, not administrative rules.
{3} Appellants are inmates in ODRC custody who have been sentenced to death for their crimes. On January 24, 2018, O‘Neal filed a complaint seeking declaratory and injunctive relief “to determine and enforce [his] right * * * not to be subjected to the execution procedures” set forth in 01-COM-11. (Jan. 24, 2018 Compl. at 1-2.)1 O‘Neal sought declarations that (1) ODRC failed to comply with the filing requirements of
{4} On January 25, 2019, all parties filed motions for summary judgment. By opinion and judgment entry filed on April 4, 2019, the trial court denied appellants’ motions for summary judgment and granted appellees’ motion for summary judgment.
{5} Appellants separately appealed the trial court‘s judgment. O‘Neal‘s appeal was docketed under case No. 19AP-260; Jackson‘s appeal was docketed under case No. 19AP-289. This court sua sponte coordinated the cases for purposes of oral argument and determination. Accordingly,
{6} O‘Neal sets forth the following three assignments of error:
[I.] The court below erred when it found that Ohio‘s execution protocol is not a rule subject to the requirements of
R.C. 111.15 .[II.] The court erred when it ruled that the ODRC, when it adopted 01-COM-11, did not exceed the scope of its authority and thus did not unconstitutionally usurp legislative authority.
[III.] The court erred when it found that “there is no unconstitutional delegation of authority in this case.”
{7} Jackson advances the following three assignments of error:
[I.] The trial court erred when it denied plaintiff‘s motion for summary judgment and granted defendants’ motion for summary judgment on the first claim even though defendants failed to comply with
R.C. 111.15 when they enacted an internal management rule (ODRC 01-COM-11).[II.] The trial court erred when it granted the defendants’ motion for summary judgment on the second claim even though defendants’ adoption of ODRC 01-COM-11 usurped legislative power reserved to the General Assembly.
[III.] The trial court erred when it granted defendants’ motion for summary judgment on the third claim. The defendants’ adoption of ODRC 01-COM-11 was premised on an unlawful delegation of legislative or rulemaking authority by the General Assembly.
{8} While appellants have separately appealed the trial court‘s judgment and set forth separate assignments of error, the issues involved in both appeals are substantially the same, i.e., whether the trial court erred in granting summary judgment to appellees and denying summary judgment to appellants on appellants’ claims that (1) ODRC failed to comply with
Assembly unconstitutionally delegated its legislative authority to ODRC to promulgate 01-COM-11.
{9} Appellate review of summary judgment is de novo. Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). ” ‘When reviewing a trial court‘s ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.’ ” Abrams v. Worthington, 169 Ohio App.3d 94, 2006-Ohio-5516, at ¶ 11 (10th Dist.), quoting Mergenthal v. Star Banc Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997).
{10} Here, all parties agree that there are no disputed factual issues in this case; thus, the only issue to be resolved is whether the trial court erred in determining that appellees are entitled to judgment as a matter of law on appellants’ claims.
{11} In their first assignment of error,3 appellants contend the trial court
{12} At the outset, we note appellees’ assertion that appellants’ claim that 01-COM-11 is invalid and unenforceable because it was not properly promulgated as a rule under
{13} A declaratory judgment action is a civil action and provides a remedy in addition to other available legal and equitable remedies. Aust v. Ohio State Dental Bd., 136 Ohio App.3d 677, 681 (10th Dist.2000). “The essential elements for declaratory relief are: (1) a real controversy exists between the parties; (2) the controversy is justiciable in character; and (3) speedy relief is necessary to preserve the rights of the parties.” Id.
judgment or decree.” In addition,
{14} Appellees contend that
{15} Appellants’ first cause of action arguably fails to fall within the parameters of a declaratory judgment action. Nonetheless, assuming without deciding, that a declaratory judgment action provides a vehicle for resolving the issue raised in appellants’ first cause of action, we address the merits of the assignment of error.
{16} Agencies such as ODRC that are not subject to the rulemaking requirements in
(1) “Rule” includes any rule, regulation, bylaw, or standard having a general 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 toChapter 119 or division (C)(1) or (2) ofsection 5117.02 of the Revised Code . “Rule” includes any amendment or rescission of a rule.
(2) “Agency” means any governmental entity of the state and includes, but is not limited to, any board, department, division, commission, bureau, society, council, institution, state college or university, community college district, technical college district, or state community college. “Agency” does not include
the general assembly, the controlling board, the adjutant general‘s department, or any court.
(3) “Internal management rule” means any rule, regulation, bylaw, or standard governing the day-to-day staff procedures and operations within an agency.
{17}
(1) Any rule, other than a rule of an emergency nature, adopted by any agency pursuant to this section shall be effective on the tenth day after the day on which the rule in final form and in compliance with division (B)(3) of this section is filed as follows:
(a) The rule shall be filed in electronic form with both the secretary of state and the director of the legislative service commission;
(b) The rule shall be filed in electronic form with the joint committee on agency rule review. * * *
{18} Appellees concede that 01-COM-11 was not filed with the secretary of state, the director of the legislative service commission, or the joint committee on agency rule review. The trial court found that 01-COM-11 is an “internal management rule” as defined in
{19} We disagree with the trial court‘s analysis on two fronts. First, 01-COM-11 is not “an internal management rule” as defined in
be exempt from the requirements of
{20} Although we have found error in the trial court‘s analysis, our review is not complete. “A reviewing court will not reverse a correct judgment merely because a trial court relied on an erroneous reason as the basis for its determination.” Hassey v. Columbus, 10th Dist. No. 17AP-726, 2018-Ohio-3958, ¶ 33, citing Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 96 (1990). “In other words, ‘when a trial court has stated an erroneous basis for its judgment, an
{21} Here, 01-COM-11 is exempt from the filing requirements of
{22} Moreover, had the General Assembly intended that ODRC adopt rules pursuant to
{23} Because the General Assembly has not expressly directed ODRC to adopt rules under
{24} Moreover, even if we were to assume that a declaratory judgment action is not a proper procedural vehicle to challenge appellees’ failure to promulgate 01-COM-11 pursuant to
{25} For all these reasons, appellants’ first assignment of error is overruled.
{26} Appellants’ second and third assignments of error are interrelated and will be addressed together. In their second assignment of error, appellants claim that ODRC usurped legislative power in promulgating 01-COM-11 because it exceeds the scope of the enabling authority granted by the General Assembly. In their third assignment of error, appellants argue that if the General Assembly intended to delegate to ODRC the authority to promulgate 01-COM-11, such delegation violated Section 1, Article II of the Ohio Constitution.
{27} At the outset, we note that appellants’ second and third causes of action plainly fall within the parameters of a declaratory judgment action. As noted above,
{28} Appellants’ arguments necessarily implicate the separation of powers doctrine. “The principle of separation of powers into three coequal branches-executive, legislative, and judicial-and the checks and balances that principle ensures are now deemed fundamental to our democratic form of government.” State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, ¶ 55. “Although not explicitly stated in the Ohio Constitution, ‘[t]he separation-of-powers doctrine implicitly arises from our tripartite democratic form of government and recognizes that the executive, legislative, and judicial branches of our government have their own unique powers and duties that are separate and apart from the others.’ ” State v. Fisher, 4th Dist. No. 16CA3553, 2017-Ohio-7260, ¶ 28, citing State v. Thompson, 92 Ohio St.3d 584, 586 (2001). “The separation-of-powers doctrine requires that each branch of government be permitted to exercise its constitutional duties without interference from the other two branches of government.” Dann at ¶ 56. The doctrine is invoked only when there is some interference by one governmental branch with the constitutional authority of another branch. State ex rel. AFSCME v. Taft, 156 Ohio App.3d 37, 2004-Ohio-493, ¶ 31 (3d Dist.). “Pursuant to this doctrine, ‘each of the three grand divisions of the government must be protected from the encroachments of the others, so far that its integrity and independence may be preserved.’ ” Id., citing South Euclid v. Jemison, 28 Ohio St.3d 157 (1986).
{29} ODRC is a statutorily created administrative department of the state of Ohio, which “shall be administered by the director of rehabilitation and correction.”
the rules and regulations that the director prescribes and shall be under the director‘s
{30}
{31} Appellees have relied on
{32} Appellants contend that neither
{33} Administrative policies are a means of accomplishing a legislative end. Burden v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 11AP-832, 2012-Ohio-1552, ¶ 21, citing Doyle v. Ohio Bur. of Motor Vehicles, 51 Ohio St.3d 46, 47 (1990). “[I]f a statute provides the authority for an administrative agency to perform a specified act, but does not provide the details by which the act should be performed, the agency is to perform the act in a reasonable manner based upon a reasonable construction of the statutory scheme.” Northwestern Ohio Bldg. & Constr. Trades Council v. Conrad, 92 Ohio St.3d 282, 287 (2001), citing Swallow v. Indus. Comm., 36 Ohio St.3d 55, 57 (1988). ” ‘[T]he power of an administrative agency to administer a * * * program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by the legislature.’ ” Northwestern at 289, quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974). When agencies promulgate policies and regulations to fill legislative
{34} However, if an administrative policy exceeds the statutory authority granted by the General Assembly, “the agency has usurped the legislative function, thereby violating the separation of powers established in the Ohio Constitution.” McFee v. Nursing Care Mgt. of Am., Inc., 126 Ohio St.3d 183, 2010-Ohio-2744, ¶ 24. Policies promulgated by administrative agencies are valid and enforceable unless unreasonable or in conflict with statutory enactments covering the same subject matter. Williams v. Spitzer Autoworld Canton, L.L.C., 122 Ohio St.3d 546, 2009-Ohio-3554, ¶ 18, citing Hoffman v. State Med. Bd. of Ohio, 113 Ohio St.3d 376, 2007-Ohio-2201, ¶ 17.
{35} Here, appellants contend that promulgation of 01-COM-11 exceeded the scope of statutory authority granted by the General Assembly under
{36} Appellants also contend that the General Assembly did not grant authority to ODRC to promulgate an execution protocol that is inconsistent with
injection. Appellants further argue that this change in the method of execution conflicts with the statutory requirement that the execution be quick and painless.
{37} The General Assembly has not defined the pertinent terms set forth in
{38} We cannot agree with appellants’ contention that use of an intravenous injection as a method of carrying out a “lethal injection” conflicts with
{39} However, former ODRC Director Mohr provided uncontroverted testimony establishing that ODRC, as the agency
{40} Moreover, as noted by appellees, “injection” is defined as the “[i]ntroduction of a medicinal substance or nutrient material into the subcutaneous cellular tissue (subcutaneous or hypodermic), the muscular tissue (intramuscular), a vein (intravenous)
* * * or other canals or cavities of the body.’ ” (Emphasis added.) Stedman‘s Medical Dictionary Third Unabridged Lawyers’ Edition at 635 (1972). Thus, appellants’ contention that the term “injection” contemplates only intramuscular injection is contrary to medical authority.
{41} Furthermore, a sampling of Ohio case law reveals that the term “injection” is often used in conjunction with the term “intravenous.” See, e.g., Sellers v. Knox Community Hosp., 5th Dist. No. 16 CA 12, 2016-Ohio-8566, ¶ 6 (intravenous injections of dilaudid); Cobb v. Shipman, 11th Dist. No. 2013-T-0117, 2015-Ohio-2604, ¶ 4 (intravenous injection of pitocin); State v. Drummond, 7th Dist. No. 05 MA 197, 2006-Ohio-7078, ¶ 99 (intravenous injection of high dose potassium); Moore v. Univ. of Cincinnati Hosp., 93 Ohio App.3d 616, 617 (10th Dist.1994) (intravenous morphine injection); State v. Baker, 9th Dist. No. C.A. No. 16785 (Jan. 25, 1995) (lethal dose of morphine administered by intravenous injection); Dowler v. Bath, 1st Dist. No. C-910428 (Nov. 25, 1992) (intravenous injection of both nitroglycerin and heparin); Mulloff v. Natl. Acc. & Health Ins., 67 Ohio App. 464, 465 (8th Dist.1941) (doctor administered intravenous injection of poison compound). While these cases did not consider whether the term “injection” contemplates an “intravenous” injection in the context of an inmate execution, they do establish that the term “injection” encompasses an intravenous injection, not just an intramuscular injection.
{42} In addition, despite appellants’ assertions to the contrary, 01-COM-11 does not circumvent the requirement in
{43} The procedures set forth in 01-COM-11 provide for the medical team to establish one or two viable IV sites and allow as much time as necessary to do so. The medical team tests the viability of the IV site with a low-pressure saline drip through IV tubing. In the event a viable IV site cannot be established, the medical team consults with the warden, the ODRC director, and auxiliary team members to determine whether or how long to continue efforts to establish a viable IV site. (01-COM-11 at 15-16). Once a viable IV site has been established, the drug administrator intravenously administers the midazolam hydrochloride and assesses the inmate‘s consciousness. If the inmate is found to be unconscious, the process continues with the intravenous administration of the paralytic agent and the potassium chloride. Following administration of the drugs, the drug administrator inspects the IV site for evidence of incontinence or infiltration and assesses the inmate‘s breathing and heart sounds. At the completion of the process and after a sufficient time for death to have occurred, an appropriate medical professional evaluates the inmate to confirm death. (01-COM-11 at 17-18.)
{44} Former ODRC Director Mohr testified that at the time 01-COM-11 was adopted, the process was “expected” to take 15-20 minutes from injection of the first drug to death. (Mohr Dep. at 118-19.) Appellants contend this 15-20 minute death is not the “quick” death described in
{45} Appellants further contend that the three-drug protocol set forth in 01-COM-11 conflicts with
begins. (O‘Neal Brief at 40.) However, as noted above, the Broom court determined that the insertion of intravenous lines was a “necessary preliminary step” in the execution process. Id. Appellants also contend that “[t]here is no dispute that the third drug given in the sequence [potassium chloride] is known to cause pain * * * that the paralytic [agent] does not stop pain, * * * [and that] [t]he first drug, midazolam is not designed to stop pain and has a short span of effectiveness for inducing unconsciousness.” (O‘Neal Brief at 34-35.) However, appellants failed to provide documentary or testimonial evidence in support of these assertions. Furthermore, appellants’ claim regarding midazolam hydrochloride contradicts that of the United States Supreme Court in Glossip, where the Court stated that midazolam “is likely to render an inmate insensate to pain that might result from administration of the
{46} Appellants finally contend that 01-COM-11 impermissibly impedes an inmate‘s right to counsel by (1) imposing search procedures on defense counsel prior to consultation with the condemned inmate on the day prior to the scheduled execution, (2) permitting only cell-front attorney-client meetings on the morning of the scheduled execution, and (3) limiting defense counsel‘s telephone access on the day of execution to an internal prison telephone. Appellants cite no authority establishing that the procedures set forth in 01-COM-11 unduly hinder a condemned inmate‘s access to counsel prior to the scheduled execution.
{47} Moreover, former ODRC Director Mohr explained why the foregoing procedures were implemented. Mohr described the search requirement as “a fundamental security practice in that it is to prevent specific contraband from being passed.” (Mohr Dep. at 60-61.) He further averred that the search requirement resulted from a compromise, i.e., in exchange for not having staff members physically present in the area near the attorney/client discussions, defense counsel would submit to a search. Id. Mohr further testified that restrictions on cell-front visitation and a ban on defense counsel‘s use of a personal cellphone on the day of execution were developed by execution team members and submitted to federal court to ensure compliance with Ohio law. (Mohr Dep. at 66-67.)
Appellants have not provided any evidence contradicting Mohr‘s assertions or establishing how or why these measures unconstitutionally impede attorney/client communications.
{48} For the foregoing reasons, we conclude that ODRC did not usurp legislative authority in establishing and implementing 01-COM-11 for the purpose of carrying out court-ordered executions in the state of Ohio. Accordingly, appellants’ second assignment of error is overruled.
{49} As to appellants’ third assignment of error, our determination that ODRC did not usurp legislative authority in promulgating 01-COM-11 informs our analysis as to appellants’ contention that the General Assembly improperly delegated its legislative authority to ODRC to promulgate 01-COM-11.
{50} The legislative power of the state is vested in the General Assembly pursuant to
{51} “Delegation of rulemaking authority is a necessary response to the increasing complexity of modern government.” Id., citing In re Adoption of Uniform Rules and Regulations Relating to Valuation of Real Property, 169 Ohio St. 445, 455 (1959). As a general
{52} Appellants contend that the General Assembly has provided no legislative guidance in establishing the execution protocol and thus has improperly provided ODRC unfettered discretion to implement law and public policy. Contrary to appellants’ assertions, we find that the General Assembly has provided sufficient legislative guidance in establishing the execution protocol. In enacting
{53} Indeed, former ODRC Director Mohr testified that the purpose of ODRC‘s execution protocol was to achieve the legislative purpose by making the process “a humane execution for everyone.” (Mohr Dep. at 36.) He further testified that “the drugs that were chosen * * * were chosen through the research that came to me that indicated that those drugs would result in a peaceful end of life * * * and the drugs in the protocol were utilized with that belief.” (Mohr Dep. at 39.) Again, appellants have provided no evidence refuting Mohr‘s assertions.
{54} Thus, the distinction here is clear – via
{55} Decisions of other state courts considering similar execution protocol delegation-of-authority arguments support our conclusion in the present case. See Zink v. Lombardi, W.D.Mo. No. 2:12-CV-4209-NKL, 2012 U.S. Dist. LEXIS 191818 (Missouri legislature established general policy to conduct execution by lethal gas or injection and agency could reasonably fill in details regarding protocol and method of execution); Cook v. State, 230 Ariz. 185 (2012) (statute directing Arizona Department of Corrections to supervise infliction of death penalty by injection with lethal substances provides definite policy and rule of action to guide department); State v. Ellis, 281 Neb. 571, 592-93 (2011)
(implementation of an execution protocol is highly technical and requires a course of continuous decision, making it appropriate
{56} Accordingly, for all the foregoing reasons, we conclude that the General Assembly did not unconstitutionally delegate its authority to ODRC to establish and implement 01-COM-11 for the purpose of carrying out court-ordered executions in the state of Ohio. Accordingly, appellants’ third assignment of error is overruled.
{57} Having determined that there is no constitutional or legislative impediment preventing ODRC from promulgating a protocol governing court-ordered executions in the state of Ohio, we find that the trial court did not err in granting summary judgment to appellees on appellants’ claims for declaratory and injunctive relief.
{58} Having overruled appellants’ three assignments of error, we hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER and BEATTY BLUNT, JJ., concur.