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Ward v. Hutchinson

Supreme Court of Arkansas

November 1, 2018



          Jennifer Horan, Federal Public Defender, by: April Golden and Scott W. Braden, Ass't Federal Public Defenders, for appellant.

          Leslie Rutledge, Att'y Gen., by: Ka Tina R. Hodge, Ass't Att'y Gen., for appellee.


         Appellant Bruce Earl Ward appeals an order of the Jefferson County Circuit Court denying a motion for preliminary injunction and dismissing his complaint against Governor Asa Hutchinson, Wendy Kelley, Director of the Arkansas Department of Correction (ADC); Randy Watson, Warden of Varner Supermax Unit; and Benny Magness, Chairperson of the Arkansas Board of Corrections (collectively "the State"). For reversal, Ward argues that the circuit court erred in dismissing his complaint because Arkansas Code Annotated section 16-90-506(d)(1) (Repl. 2016)[1] violates his constitutional guarantees of due process, pursuant to the United States and Arkansas Constitutions, and the doctrine of separation of powers, pursuant to the Arkansas Constitution. We reverse the circuit court's dismissal of Ward's complaint and remand to the circuit court for further proceedings consistent with this opinion.

         I. Facts

         In 1990, a Pulaski County Circuit Court jury convicted Ward of capital murder for the death of Rebecca Doss and sentenced him to death by lethal injection. This court affirmed his death sentence in three separate appeals. Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999) (affirming death sentence); Ward v. State, 321 Ark. 659, 906 S.W.2d 685 (1995) (per curiam) (reversing death sentence because the record was insufficient and remanding for a new sentencing trial); Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992) (affirming capital-murder conviction; reversing death sentence because of an evidentiary error).

         On February 28, 2017, Governor Asa Hutchinson issued a warrant scheduling Ward's execution for April 17, 2017. On March 29, 2017, Ward filed a complaint requesting injunctive and declaratory relief. In his complaint, Ward challenged his competence to be executed and requested a hearing. On April 7, 2017, Ward filed his amended complaint and alleged that (1) his execution would violate his right to freedom from cruel and unusual punishment as protected by the Eighth and Fourteenth Amendments to the United States Constitution, because he was incompetent and unable to comprehend a punishment of death; (2) the State had violated the prohibition against cruel and unusual punishment, pursuant to the United States Constitution and article 2, section 9 of the Arkansas Constitution, because solitary confinement had exacerbated his mental condition; (3) section 16-90-506 did not comport with the due-process requirements of the United States and Arkansas Constitutions and was unconstitutional on its face and as applied; (4) section 16-90-506(d)(1) violated the Eighth and Fourteenth Amendments as set forth in Ford v. Wainwright, 477 U.S. 399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007), by statutorily assigning the competency-for-execution decision to the Director; and (5) the Director's determination of Ward's competence violated the state constitutional guarantees of the separation of powers by purporting to confer such authority on the Director. In support of his complaint, Ward submitted the psychological evaluations of Dr. William S. Logan and affidavits of trial counsel and postconviction counsel.

         On April 5, 2017, the State moved to dismiss Ward's amended complaint for failure to state a claim under Rule 12(b)(6) of the Arkansas Rules of Civil Procedure. The State asserted that, "as a matter of law, [Ward] was not denied due process when he was not given a hearing"; that section 16-90-506(d)(1) was not unconstitutional on its face or as applied to Ward; that section 16-90-506(d)(1) did not violate the separation-of-powers provision of the Arkansas Constitution; and that there was no legal basis to enjoin Ward's execution. The State contended that the circuit court lacked jurisdiction to stay an execution and that the procedure in section 16-90-506(d)(1) was a proper exercise of executive-branch authority. The State further asserted that Ward's civil-rights claims regarding his confinement were barred because (1) he had not exhausted his administrative remedies, (2) the allegations were untimely, (3) his claims were collateral attempts to challenge the lawfulness of the death sentence, and (4) the State was immune from suit. The State filed a motion to dismiss Ward's amended complaint on April 11, 2017.

         Ward filed an objection to the State's motions to dismiss and stated, inter alia,

With the complaint pending before the court, Mr. Ward has set forth and further intends to augment via Dr. Logan's evaluation and imminent reporting, the requisite showing . . . [to] permit, pursuant to a 'substantial threshold showing,' a proper competency-for-execution hearing pursuant to Panetti v. Quarterman, 551 U.S. 930, 949 (2007), and Ford v. Wainwright, 477 U.S. 399, 409-10 (1986).

         On April 13, 2017, the circuit court entered its order denying Ward's motion for preliminary injunction and granting the State's motion to dismiss Ward's complaint. In its order, the circuit court ruled,

Although [Ward] titles his motion as one seeking a preliminary injunction, it is a request to stay his execution. The law is clear. A circuit court lacks jurisdiction to stay an execution. The motion [for preliminary injunction] is DENIED.

         The circuit court also dismissed Ward's complaint, ruling,

The [State has] sovereign and statutory immunity, [Ward] has failed to exhaust his remedies [on his claims concerning confinement], and [Ward] has failed to state a claim for which the court can grant relief. The case is DISMISSED.

         That same day, Ward filed an emergency notice of appeal. On April 17, 2017, this court granted an emergency stay of execution filed by Ward. He now brings his appeal from the circuit court's order of dismissal.

         II. Procedural Issues

         Before reaching the merits of Ward's arguments, we address certain threshold procedural issues raised by the State.

         A. Standing

         The State argues that Ward does not have standing to pursue a declaratory judgment. The State contends that "the statute has yet to be applied to Ward, so he lacks standing." The State avers that because Ward failed to request the Director to render an opinion on his competency, he lacks standing to challenge the statute.

         As a general rule, one must have suffered injury or belong to a class that is prejudiced in order to have standing to challenge the validity of a law. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997). To have standing to attack the constitutionality of a statute, the appellant must show that the questioned act had a prejudicial impact on him or her. Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Garrigus v. State, 321 Ark. 222, 901 S.W.2d 12 (1995).

         Because of his death sentence, Ward clearly has a personal stake in the outcome of this case. In 1997, he received his third and final death sentence. Governor Hutchinson issued an execution warrant on February 28, 2017. On March 29, 2017, he filed his complaint seeking injunctive and declaratory relief and challenging section 16-90-506(d)(1) on due-process and separation-of-powers grounds. He filed an amended complaint on April 7, 2017. His execution was scheduled for April 17, 2017. This court granted Ward's petition for an emergency stay on the day of his scheduled execution, and the execution warrant did not take effect. However, this fact does not negate his standing to challenge the constitutionality of section 16-90-506(d)(1). Thus, we hold that Ward has standing to bring this action.

         B. Preservation of Ward's Arguments

         The State presents two preservation arguments to this court as the basis for affirmance. First, the State argues that this court lacks jurisdiction to consider Ward's due-process argument because the circuit court did not specifically rule on the constitutionality of section 16-90-506 when it dismissed his complaint. Second, the State asserts this court ...

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