Gentry v. Eldon Vail

Decision Date29 July 2010
Docket NumberNos. 83474-1, 83828-3.,s. 83474-1, 83828-3.
Citation237 P.3d 263,169 Wash.2d 318
CourtWashington Supreme Court
PartiesCal Coburn BROWN and Jonathan Gentry, Appellants, v. Eldon VAIL, Secretary of Washington Department of Corrections (in his official capacity); Stephen Sinclair; Marc Stern; Cheryl Strange; Washington State Department of Corrections, and Does 1-50, Respondents. Darold Stenson, Appellant, v. Eldon Vail, Secretary of Washington Department of Corrections (in his official capacity); Stephen Sinclair; Marc Stern; Cheryl Strange; Washington State Department of Corrections, and Does 1-50, Respondents.

OPINION TEXT STARTS HERE

Sherilyn Christine Peterson, Perkins Coie, L.L.P., Diane Marie Meyers, Graham & Dunn, Seattle, WA, for Appellants.

Sara J. Di Vittorio, John Joseph Samson, Office of the Attorney General, Olympia, WA, for Respondents.

Sarah A. Dunne, Nancy Lynn Talner, ACLU of Washington Foundation, Beth Marie Andrus, Skellenger Bender PS, Seattle, WA, amicus counsel for ACLU of Washington Foundation.

Scott Jeffrey Engelhard, Suzanne Lee Elliott, Gilbert Henry Levy, Attorneys at Law, Seattle, WA, amicus counsel for Interested Parties.

STEPHENS, J.

¶ 1 This case began mainly as a constitutional challenge by three death row inmates, Darold Stenson, Cal Brown, and Jonathan Gentry (Appellants), to Washington's three-drug lethal injection protocol for carrying out a sentence of death. The Thurston County Superior Court dismissed some claims on summary judgment and held a five-day bench trial in May 2009 to consider whether the three-drug protocol violated the Eighth Amendment prohibition against “cruel and unusual punishment” or Washington's constitutional ban on “cruel punishment” in article I, section 14. The trial court upheld the lethal injection protocol, and this appeal followed.

¶ 2 Before this court heard oral argument, however, the Washington Department of Corrections (Department) abandoned the three-drug method of execution and adopted a new, one-drug protocol, effective March 8, 2010. The Department now moves to dismiss the Appellants' constitutional challenge as moot, leaving for review only claims concerning the legislative delegation of authority to the Department to develop a lethal injection protocol, and the Department's handling of the lethal injection substances under state and federal law governing controlled substances. In addition, the Department cross-appeals the trial court's refusal to dismiss this case as time barred. 1

¶ 3 For the reasons that follow we affirm the trial court, both as to the statute of limitations question and its dismissal of the claims concerning legislative delegation and the state and federal controlled substances acts. With respect to the Appellants' constitutional challenge and related claims, we grant the Department's motion to dismiss these claims as moot.

FACTS AND PROCEDURAL HISTORY

¶ 4 The Appellants in this matter were sentenced to death following murder convictions. In this civil action, they challenge the Department's protocol for carrying out a death sentence by lethal injection. Below and in their initial briefs in this court, the Appellants did not challenge the imposition of the death penalty generally or the use of some lethal injection protocol to impose death; rather, their claim focused on the particular three-drug protocol the Department followed. See Opening Br. of Appellant Stenson at 25 (Br. of Appellants) (arguing one-drug execution method is preferable). 2

A. Procedural History

¶ 5 In September 2008, Stenson brought an action against the Department challenging the adequacy of the Department's lethal injection policy under the state and federal constitutions. Br. of Appellants at 7. He also alleged the Department lacked a proper delegation of legislative authority to develop the policy. See Clerk's Papers (CP) at 3381 (dismissing claim on summary judgment). In 2009, Brown and Gentry brought a separate action, which was later consolidated with Stenson's. Opening Br. of Resp'ts/Cross-Appellants (Br. of Resp'ts) at 10-11. Upon consolidation, Brown and Gentry agreed to pursue only their constitutional challenge and dismiss for trial their claims that the Department lacked legislative authority to develop the protocol and that the Department's handling of the lethal injection substances violated the federal controlled substances act. Id. Brown and Gentry did not waive their right to appeal the pretrial dismissal of those claims. Id. at 11.

¶ 6 In April 2009, Stenson filed a second amended complaint seeking a declaratory judgment and injunctive relief to enjoin the Department from carrying out executions under the 2008 lethal injection protocol, as written and as implemented by the Department. CP at 1148-66. The complaint alleged that the protocol violates the Appellants' rights under the Eighth Amendment to the United States Constitution and article I, section 14 of our state's constitution. The complaint also alleged the protocol violates the state and federal controlled substances acts. CP at 1165.

¶ 7 Prior to trial, the Appellants unsuccessfully moved for a preliminary injunction in order to get a temporary stay of execution. CP at 558-61. That decision was appealed to this court, which entered a temporary stay of execution. Wash. Supreme Court Order, Brown v. Vail, No. 82832-6 (Mar. 12, 2009). 3 The Appellants request for permanent injunctive relief on the basis of various alleged constitutional and statutory violations proceeded to a trial on the merits.

¶ 8 Before trial, having already dismissed the Appellants' unlawful delegation claim, the trial court additionally granted summary judgment dismissal of the Appellants' claim regarding the alleged violation of the state and federal controlled substances acts. CP at 2941-42.

¶ 9 A bench trial commenced on the remaining constitutional claims on May 21, 2009 and lasted five days. At its conclusion, the trial court ruled in favor of the Department. CP at 3191-207 (Findings of Fact and Conclusions of Law); Br. of Appellants, Ex. 4 (appending trial court's findings of fact and conclusions of law).

¶ 10 The Appellants appealed directly to this court, and we retained the matter, setting oral argument for March 18, 2010. On March 4, 2010, the Department filed a motion to dismiss as moot the claims that the three-drug protocol is unconstitutional. The Department represented that it was poised to adopt a new protocol allowing for execution by a single dose of sodium thiopental, rather than the three-drug combination, which it argued would render the Appellants' constitutional claims moot. On March 8, 2010, the Appellants filed a response to the Department's motion, arguing that even if this court were to find the Appellants' constitutional claims moot, “that would not necessarily require their dismissal, but might instead call for further proceedings to assess the constitutionality of the amended policy” under the state and federal constitutions. Pet'rs' Resp. to Resp'ts' Mot. to Dismiss as Moot the Claims that the Three-Drug Protocol is Unconstitutional at 7 (Resp. to Mot. to Dismiss as Moot). That same day, on March 8, 2010, the Department officially adopted the one-drug protocol. On March 9, 2010, the court entered an order passing the Department's motion to dismiss to the merits.

B. The Death Penalty Protocol

¶ 11 The Department implements the death penalty through a written policy, DOC 490.200, to which the Department makes periodic revisions. Br. of Appellants at 5. The secretary of the Department must approve changes. Id. In one revision, the Department established a three-drug protocol for lethal injection to be administered in the following order: sodium thiopental, pancuronium bromide, and potassium chloride. CP at 3425 (1998 version of protocol). This protocol was revised in 2008 following the United States Supreme Court opinion in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 1532, 170 L.Ed.2d 420 (2008) (upholding Kentucky's three-drug protocol against an Eighth Amendment challenge). I Verbatim Report of Proceedings (VRP) at 71.

¶ 12 As noted, when we retained review in this case, the 2008 protocol was in effect and the Appellants challenged this protocol as impermissible under state and federal constitutional provisions prohibiting cruel and/or unusual punishment. Under the 2008 three-drug protocol, an execution is carried out via intravenous injection of three lethal substances: sodium thiopental, pancuronium bromide, and potassium chloride. Sodium thiopental is an anesthetic that induces a deep, coma-like unconsciousness. II VRP at 272-74. The second drug, pancuronium bromide, is a paralytic agent that inhibits muscular-skeletal movements and stops respiration by paralyzing the diaphragm, therefore bringing about the death of the inmate by asphyxiation. II VRP at 275, 281. The third drug, potassium chloride, a heart attack-inducing agent, interferes with the electrical signals that stimulate heart contractions. II VRP at 276-77. Without the unconsciousness produced by the sodium thiopental, the condemned inmate would experience a very painful death as a result of the effects of pancuronium bromide and potassium chloride. II VRP at 281-82.

¶ 13 Prior to oral argument in this case, the Department amended its protocol so that a condemned inmate is now put to death with a single dose of sodium thiopental. Testimony at trial established that in large doses, roughly three grams or above, sodium thiopental will likely stop an individual from breathing. III VRP at 483. The 2010 protocol calls for the administration of a five gram dose. Resp. to Mot. for Continuance of Oral Argument, App. B at 10. For this discussion, the pertinent differences between the 2008 and 2010 protocols are that that 2010 protocol adopted the single-drug method of execution and it also expressly incorporated a checklist used by the superintendent in preparing for an execution. Id. at 1 ...

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