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Kelley v. Johnson

Supreme Court of Arkansas

June 23, 2016



          Leslie Rutledge, Att'y Gen., by: Lee P. Rudofsky, Solicitor General, and Jennifer L. Merritt, Ass't Att'y Gen., for appellants.

          John C. Williams, Federal Public Defender Office; and Jeff Rosenzweig, for appellees.

          COURTNEY HUDSON GOODSON, Associate Justice

         Appellants Wendy Kelley, in her official capacity as Director of the Arkansas Department of Correction, and the Arkansas Department of Correction (collectively "ADC") appeal the orders entered by the Pulaski County Circuit Court denying their motions to dismiss and for summary judgment against multiple claims challenging the constitutionality of Act 1096 of 2015 brought by appellees Stacey Johnson, Jason McGehee, Bruce Ward, Terrick Nooner, Jack Jones, Marcel Williams, Don Davis, and Ledell Lee (collectively "Prisoners"). For reversal, ADC contends that the Prisoners failed to sufficiently plead and prove their asserted constitutional violations in order to overcome the defense of sovereign immunity. We reverse the circuit court's decision in toto and dismiss the Prisoners' amended complaint.

         I. Factual Background

         This litigation was initiated by the Prisoners who are under sentences of death for capital murder, and the issues are centered on Act 1096 of 2015 (the "Act"), which is codified at Arkansas Code Annotated section 5-4-617 (Supp. 2015). The Act establishes the current method by which executions are to be conducted in Arkansas.

         The Act amends the previous method-of-execution statute, formerly found at Arkansas Code Annotated section 5-4-617 (Repl. 2013), that was passed into law by Act 139 of 2013. Under Act 139, the protocol entailed the intravenous administration of a benzodiazepine to be followed by a "lethal injection of a barbiturate in an amount sufficient to cause death." Ark. Code Ann. § 5-4-617(a) & (b) (Repl. 2013). It also exempted information about execution procedures and their implementation from the Arkansas Freedom of Information Act (FOIA). Ark. Code Ann. § 5-4-617(g) (Repl. 2013). The Prisoners, with the exception of Ledell Lee, previously brought a declaratory-judgment action against ADC in regard to Act 139. In that complaint, the Prisoners asserted, among other things, that Act 139 violated the separation-of-powers doctrine under the Arkansas Constitution because the statute delegated unbridled discretion to ADC in determining which drug was to be used for lethal injection. In connection with that lawsuit, the parties entered into a settlement agreement on June 14, 2013. Because ADC had decided not to employ the then existing lethal-injection protocol, the Prisoners agreed to forgo their as-applied claims contesting the constitutionality of the protocol in exchange for ADC's agreement to not raise the defense of res judicata should the Prisoners reassert an as-applied claim. Also as part of the settlement, ADC agreed to provide a copy of the new protocol, and once the selected drugs were obtained, to "disclose the packaging slips, package inserts, and box labels received from the supplier." Ultimately, the Prisoners prevailed in the circuit court on their facial challenge to Act 139. However, this court reversed, holding that Act 139 did not violate separation of powers because the statute provided reasonable guidelines to ADC in determining the method to use in carrying out the death penalty. Hobbs v. McGehee, 2015 Ark. 116, 458 S.W.3d 707.[1]

         Act 1096 became effective on April 6, 2015, soon after our decision in McGehee. The salient features of the present Act are two-fold. First, it modifies the permissible means of execution by lethal injection:

(c) The department shall select one (1) of the following options for a lethal-injection protocol, depending on the availability of the drugs:
(1)A barbiturate; or
(2)Midazolam, followed by vecuronium bromide, followed by potassium chloride.

Ark. Code Ann. § 5-4-617(c) (Supp. 2015). Further, the Act provides that the drugs used to carry out the lethal injection shall be (1) approved by the United States Food and Drug Administration (FDA) and made by a manufacturer approved by the FDA; (2) obtained by a facility registered with the FDA; or (3) obtained from a compounding pharmacy that has been accredited by a national organization that accredits compounding pharmacies. Ark. Code Ann. § 5-4-617(d) (Supp. 2015). Like Act 139 of 2013, the Act also provides that the ADC shall carry out the sentence of death by electrocution if execution by lethal injection is invalidated by a final and unappealable court order. Ark. Code Ann. § 5-4-617(k) (Supp. 2015).

         The second departure from the former law lies in the Act's nondisclosure provisions. While the Act maintains the previous FOIA exemption, it also contains the following confidentiality requirements:

(2)The department shall keep confidential all information that may identify or lead to the identification of:
(A)The entities and persons who participate in the execution process or administer the lethal injection; and
(B)The entities and persons who compound, test, sell, or supply the drug or drugs described in subsection (c) of this section, medical supplies, or medical equipment for the execution process.
(3) The department shall not disclose the information covered under this subsection in litigation without first applying to the court for a protective order regarding the information under this subsection.

Ark. Code Ann. § 5-4-617(i) & (j). As pertinent here, the Act permits ADC to make available to the public the following information, so long as the identification of the seller, supplier, or testing laboratory is redacted and maintained as confidential: package inserts and labels, if the drugs used in the protocol have been made by a manufacturer approved by the FDA; reports obtained from independent testing laboratories; and ADC's procedure for administering the drugs, including the contents of the lethal-injection drug box.

         The Prisoners first filed suit in April 2015 against ADC in the Pulaski County Circuit Court, challenging the constitutionality of the Act. ADC removed the action to federal court. However, the Prisoners promptly dismissed the federal case without prejudice and returned to the circuit court with the filing of an amended complaint, asserting claims only under the Arkansas Constitution. In response to a motion to dismiss filed by ADC, the Prisoners filed the present action under a new case number.

         During the course of the litigation, ADC informed the prisoners of its intent to execute them using the three-drug combination of Midazolam, vecuronium bromide, and potassium chloride. In connection with that disclosure, ADC provided to the Prisoners package inserts and labels for the drugs, redacting the identity of the supplier of the drugs, in accordance with the Act. ADC also provided the Prisoners with the lethal-injection protocol to be used in the executions. The protocol calls for a total dose of 500 milligrams of Midazolam, 100 milligrams of vecuronium bromide, and 240 milliequivalents of potassium chloride. On September 9, 2015, the State set execution dates for each of the Prisoners, except Ledell Lee. On application of the Prisoners, the circuit court issued a temporary restraining order staying the scheduled executions. On October 20, 2015, this court granted ADC's petition for writ of certiorari to lift the stays of execution erroneously ordered by the circuit court, based on the holding that a circuit court, in no uncertain terms, lacks the authority to stay executions. Kelley v. Griffen, 2015 Ark. 375, 472 S.W.3d 135. However, we simultaneously granted the Prisoners' request to stay their executions pending the resolution of the underlying litigation. Id.

         Meanwhile, on September 28, 2015, the Prisoners filed an amended complaint, which is the operative pleading at issue in this appeal. The amended complaint contains separate causes of action that fall into two categories: claims challenging the constitutionality of the Act's nondisclosure provisions regarding the identity of the supplier of the drugs, and claims challenging the constitutionality of the selected method of execution. Each claim is made under the Arkansas Constitution. With respect to nondisclosure, the Prisoners alleged that the confidentiality provisions of the Act (1) violate the Contract Clause, found at article 2, section 17, by impairing the disclosure obligations undertaken by ADC in the June 2013 settlement agreement; (2) offend the freedoms of speech and of the press guaranteed by article 2, section 6; (3) violate their rights to procedural protections that are part of the Cruel or Unusual Punishment Clause set forth in article 2, section 9; (4) transgress the right to procedural due process under article 2, section 8; (5) violate separation of powers by precluding adequate judicial review of the means of execution; and (6) are contrary to the Publication Clause found at article 19, section 12. Regarding the means of execution, the Prisoners alleged that (1) implementation of the Act violates the right of substantive due process found in article 2, section 8 of the Arkansas Constitution; (2) the Act violates separation of powers under article 4 by delegating unfettered discretion to ADC; (3) execution using either the three-drug-Midazolam protocol, compounded drugs, or electrocution constitutes cruel or unusual punishment under article 2, section 9; and (4) the Act violates the Ex Post Facto Clause of article 2, section 17.

         ADC filed a motion to dismiss the amended complaint on the ground of sovereign immunity. In the motion, ADC argued that the Prisoners' claims were barred by sovereign immunity because the complaint failed to state cognizable claims of any constitutional violation. In an order dated October 9, 2015, the circuit court dismissed the Prisoners' separation-of-powers claim as to the allegation of improper delegation of authority, based on this court's decision in McGehee, supra, but the court denied the motion to dismiss with regard to the contract-clause claim, the freedom-of-speech and press claim, the claims regarding procedural due process, the separation-of-powers claim with respect to the function of the judiciary, and the method-of-execution claims that the lethal-injection procedure violates the ban on cruel or unusual punishment and the alleged right of substantive due process to be free of objectively unreasonable risks of substantial and unnecessary pain and suffering.

         ADC subsequently filed a motion asking the circuit court to address its request for dismissal with regard to three of the Prisoners' claims that the circuit court had neglected to rule on in its October 9, 2015 order. On October 22, 2015, the circuit court entered a supplemental order to provide a decision concerning the omitted claims. The court dismissed the Prisoners' contention that the Act violated the ex post facto clause of the Arkansas Constitution, but the court denied the motion to dismiss the claim regarding the publication clause of the Arkansas Constitution and the due-process claim asserted in conjunction with the allegation of cruel or unusual punishment. The circuit court also ruled that the Prisoners had pled sufficient facts demonstrating feasible alternatives to the current method of execution. ADC filed a notice of appeal from the two orders ruling on their motion to dismiss.

         The Prisoners moved for partial summary judgment, and ADC moved for summary judgment on all the remaining claims asserted by the Prisoners. In its motion, ADC argued that it was entitled to summary judgment on grounds of sovereign immunity because the Prisoners had not proved viable claims of any constitutional violation. The circuit court entered an order on December 3, 2015, granting summary judgment on the disclosure claims and denying summary judgment on the means-of-execution claims. Specifically, the court granted ADC's motion for summary judgment on the remaining separation-of-powers claim. The circuit court granted the Prisoners' motion for summary judgment on their contract-clause claim, their claim regarding freedoms of speech and the press, their claims regarding due process, and the publication-clause claim. The circuit court denied ADC summary judgment on the Prisoners' substantive due-process claim and the cruel-or-unusual-punishment claim, ruling that those issues could not be decided as a matter of law because material questions of fact remained in dispute. ADC filed a timely notice of appeal from this order.

         The parties also litigated the question of a protective order. In its December 3, 2015 order, the circuit court denied ADC's request for a protective order and directed it to identify the manufacturer, seller, distributor, and supplier of any lethal-injection drugs to be used in executions by no later than noon on December 4, 2015. On December 3, 2015, ADC applied to this court for an immediate stay of the circuit court's order. On that same day, we granted a temporary stay of the circuit court's disclosure order pending briefing. On January 7, 2016, we issued an immediate stay of all proceedings in the circuit court during the pendency of this appeal.

         II. Propriety of the Appeal

         In their brief, the Prisoners contend that this court lacks jurisdiction to hear the appeal because the circuit court did not specifically rule on the issue whether ADC is entitled to sovereign immunity. In response, ADC argues that the appeal is proper because sovereign immunity was the sole basis on which it moved for dismissal and for summary judgment and that the circuit court has ruled on all the issues raised in their motions.

         The general rule is that the denial of a motion for summary judgment is neither reviewable nor appealable. Ark. R. App. P.–Civ. 2(a)(10); Bd. of Trs. v. Pulaski Cty., 2013 Ark. 230. However, Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure–Civil permits an appeal from an interlocutory "order denying a motion to dismiss or for summary judgment based on the defense of sovereign immunity." The rationale justifying an interlocutory appeal is that the right to immunity from suit is effectively lost if the case is permitted to go to trial. Ark. State Claims Comm'n v. Duit Constr. Co., 2014 Ark. 432, 445 S.W.3d 496.

         As we have explained, sovereign immunity is jurisdictional immunity from suit, and jurisdiction must be determined entirely from the pleadings. Fitzgiven v. Dorey, 2013 Ark. 346, 429 S.W.3d 234. This defense arises from article 5, section 20 of the Arkansas Constitution, which provides: "The State of Arkansas shall never be made a defendant in any of her courts." This court has extended the doctrine of sovereign immunity to include state agencies. Ark. Dep't of Cmty. Corr. v. City of Pine Bluff, 2013 Ark. 36, 425 S.W.3d 731. In determining whether the doctrine of sovereign immunity applies, the court should determine if a judgment for the plaintiff will operate to control the action of the State or subject it to liability. Ark. Dep't of Human Servs. v. Fort Smith Sch. Dist., 2015 Ark. 81, 455 S.W.3d 294. If so, the suit is one against the State and is barred by the doctrine of sovereign immunity, unless an exception to sovereign immunity applies. Ark. Dep't of Envtl. Quality v. Al-Madhoun, 374 Ark. 28, 285 S.W.3d 654 (2008). This court has recognized three ways in which a claim of sovereign immunity may be surmounted: (1) the State is the moving party seeking specific relief; (2) an act of the legislature has created a specific waiver of sovereign immunity; or (3) the state agency is acting illegally, unconstitutionally, or if a state-agency officer refuses to do a purely ministerial action required by statute. Bd. of Trs. v. Burcham, 2014 Ark. 61. The third exception is at issue in this appeal.

         In arguing that the appeal is improper, the Prisoners refer to our decision in Arkansas Lottery Commission v. Alpha Marketing, 2012 Ark. 23, 386 S.W.3d 400, where we held that, before an interlocutory appeal may be taken under Rule 2(a)(10), a circuit court must provide a ruling on the defense of sovereign immunity. In that case, Alpha Marketing had filed a declaratory-judgment action against the Lottery Commission claiming that it was entitled to the exclusive use of certain trademarks that had been registered to it. Alpha Marketing also asserted that the Lottery Commission was infringing on its trademarks, and as relief, it sought damages for lost profits and an injunction to prohibit the Lottery Commission from manufacturing, using, displaying, or selling any imitations of its registered trademarks. The Lottery Commission moved to dismiss the complaint on multiple grounds, including arguments that the trademark registrations had been improperly granted and that the marks were not entitled to trademark protection. In addition, the Lottery Commission moved for dismissal on the independent ground that the doctrine of sovereign immunity barred Alpha Marketing's request for damages and injunctive relief for trademark infringement. In a detailed written order, the circuit court denied the Lottery Commission's motion to dismiss regarding its arguments that Alpha Marketing had not stated a valid cause of action for trademark infringement. However, the court did not rule on the Lottery Commission's contention that the relief sought by Alpha Marketing was barred by sovereign immunity. Because the circuit court did not rule on the defense of sovereign immunity, and because only that claim is subject to an interlocutory appeal, we dismissed the appeal for the lack of an express ruling on the separate issue of immunity.

         Here, the circuit court did rule on the issue of sovereign immunity. Therefore, Alpha Marketing does not warrant the dismissal of this interlocutory appeal. In moving to dismiss and for summary judgment, ADC argued that it was entitled to judgment as a matter of law on the basis of sovereign immunity because the Prisoners failed either to plead or to prove viable and cognizable claims to demonstrate the unconstitutionality of the Act. In its orders, the circuit court accepted a few of ADC's arguments, while rejecting others. Thus, the circuit court ruled on each and every contention advanced by ADC to support its defense of sovereign immunity. This appeal contests the court's adverse rulings. By explicitly rejecting ADC's asserted grounds for being immune from suit, the court did, in fact, rule on the issue of sovereign immunity. Consequently, jurisdiction lies over this interlocutory appeal.

         III. Metho ...

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